Filed 2/27/13 In re R.G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re R.G., a Person Coming Under the Juvenile Court Law. D061671 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J512149) Plaintiff and Respondent,
v.
DENISE D. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County, Carol
Isackson, Judge. Reversed and remanded.
I
INTRODUCTION
Denise D. (Denise) and Richard G. (Richard) appeal the juvenile court's order
terminating their parental rights to their son, R.G., pursuant to Welfare and Institutions
Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) Denise also appeals the juvenile court's order denying her petition for
modification under section 388, asking that R.G. be placed with her, or alternatively, that
she be granted further reunification services.
We conclude the juvenile court abused its discretion in denying Denise's section
388 petition and, accordingly, reverse that order. In view of that conclusion, we need not
address the parents' other arguments challenging the trial court's order terminating their
parental rights under section 366.26. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416
["In the chronology of these events, a fair hearing on the section 388 petition was a
procedural predicate to proceeding to the section 366.26 hearing and disposition."]; In re
Lauren R. (2007) 148 Cal.App.4th 841, 861 (Lauren R.) ["Because it is necessary to
restore all parties to their prior positions, the orders terminating parental rights are also
reversed"].)
II
FACTUAL AND PROCEDURAL BACKGROUND
A
Early Dependency Proceedings
Denise has eight children, of whom R.G. is the youngest. Her oldest child is now
an adult and was never a dependent of the juvenile court. The next three children, all
girls, were the subjects of Denise's first dependency case, due to her drug use. Denise
participated in drug treatment and successfully reunified with her children. However, she
later faced homelessness and voluntarily agreed that the girls be placed with a paternal
aunt under a plan of guardianship. In 2004, Denise gave birth to twin boys, and drugs
2 were again found in her system. Denise agreed to participate in parenting classes and
drug treatment programs, but had difficulty following through with her case plan.
Another daughter was born in 2007 with drugs in her system. Although Denise thereafter
successfully completed most of her case plan objectives with respect to this child, she
resumed the use of drugs (particularly marijuana and methamphetamines), and this
daughter now resides with relative caregivers under a permanent plan of guardianship.
R.G., the subject of this appeal, was born in November 2009.
The record is not entirely clear where or with whom R.G. lived during the first
year of his life. Richard claimed that R.G. lived with him for "weeks at a time" during
that period. The record also indicates, however, that Denise and her children were
"chronically homeless." In November 2010, the twin boys were taken to Polinsky
Children's Center after Denise failed to pick them up from school. A voluntary case was
opened at that time to ensure the safety and welfare of the twins. Thereafter, however, it
appeared Denise was not taking advantage of the services offered to her. The twins
continued to have numerous absences, and were left at school for excessive periods of
time. Denise failed to give her address to the Agency and failed to take a drug test upon
the Agency's request. The twins reported being hungry because they had no food, and
they were afraid for their lives where they lived.
On January 26, 2011, the San Diego County Health and Human Services Agency
(Agency) filed a petition under section 300, subdivision (b) on R.G.'s behalf, alleging,
based on the foregoing events, that there was a substantial risk he would suffer serious
physical injury or illness due to Denise's failure or inability to adequately supervise and
3 protect him and his twin half-brothers. The Agency reported that Denise denied using
drugs at the time of R.G.'s detention. However, based on Denise's extensive history of
drug use and relapse after treatment, the Agency was concerned that she may have been
using, which was contributing to the neglect of the children.
At the onset of R.G.'s dependency, Richard, R.G.'s father, was incarcerated and
due to be released in May 2011. Richard has a lengthy criminal record and a history of
domestic violence.
The juvenile court sustained the allegations of the Agency's petition regarding
R.G. and declared him a dependent on March 2, 2011. The court found Richard to be
R.G.'s presumed father. R.G. was placed in foster care separate from his twin half-
brothers, but the court found that visitation with his brothers would not be detrimental to
R.G., and ordered sibling visitation. The court granted Denise supervised visitation, and
ordered that reunification services be offered to both parents.
In connection with the six-month review hearing, the Agency reported that R.G.
remained in the foster home where he had been placed in January, but his caregiver had
advised the Agency that she would not be an option for permanent placement. R.G.'s
twin half-brothers had been removed from their foster home in July 2011 due to a
reported incident of inappropriate behavior, but prior to that time, the boys had been
having successful weekly visits with R.G., who responded well to his brothers.
Notwithstanding his earlier statements asserting parental rights, Richard told the Agency
after his release from prison that he did not wish to participate in any reunification
services. However, he later told the social worker that he changed his mind again when
4 he saw that Denise was not "taking care of business." He participated in weekly
visitation with R.G. between September 2011 and March 2012.
The Agency reported that Denise had been looking for employment, but had not
yet obtained work. She had been having transportation and medical issues that negatively
impacted her ability to participate in services and maintain visitation with R.G. She was
discharged from her parenting class due to noncompliance, and had not demonstrated to
the Agency that she was clean and sober. Denise's visits with R.G. were inconsistent, but
when they did occur, Denise consistently demonstrated a parental role, encouraged R.G.'s
learning and development, interacted with and responded to R.G. appropriately, showed
empathy, and put R.G.'s needs ahead of her own.
The Agency recommended that reunification services for both parents be
terminated, that sibling visitation continue, and that a section 366.26 hearing be set to
select and implement a permanent plan for R.G.
On August 4, 2011, Denise called the social worker and informed her that she
believed she needed residential drug treatment in order to be successful with her services,
but she had difficulty following up with a substance abuse specialist to get referrals to
such programs. She finally met with the specialist on August 29, 2011, and was placed
on the waiting list for Serenity House. She began her residency there on September 28,
2011, with a recommended four- to six-month treatment plan.
The contested six-month review (set to coincide with the six-month review in the
twins' case) was held on October 7, 2011. Although Serenity House reported that Denise
was in full compliance with her treatment program as of that date, based on her history,
5 the Agency believed Denise had not yet mitigated the factors that brought R.G. into
dependency, and affirmed its prior recommendations. The juvenile court followed the
Agency's recommendations and set a section 366.26 hearing.
B
The Section 388 Petition and Section 366.26 Hearing
After her entry into Serenity House, Denise began regular, supervised two-hour
visits with R.G., during which she was attentive to his physical and emotional needs and
demonstrated important parenting skills. For example, she interacted with him through
conversation, physical play and pretend play. When R.G. became upset or threw a
tantrum, Denise was able to divert him with a toy or a tickle. She brought him food and
juice and a gift at Christmas. When R.G. was ill, she spoke with the social worker about
the cause, and cut one visit short, asking that his caregiver take him to the doctor. She
held R.G. in her arms and made him comfortable with a blanket while he fell asleep.
R.G. easily and excitedly went to Denise at the start of each visit, enjoyed his time with
her, and displayed no distress at leaving her.
By all measures, Denise did very well at Serenity House. She consistently tested
negative for substances after her arrival. She participated in parenting classes and
individual weekly therapy sessions. She was very active in group sessions, followed
through on her assignments, and put a great deal of thought into her participation, freely
sharing her insights about addiction, recovery and parenting. Her counselor stated that
Denise had "learned to change her negative thinking into positive thinking" and had
"grasped the solution to recovery." Although Denise completed her inpatient treatment
6 as of February 2012, she stayed at Serenity House while applying for sober housing and
seeking employment. She continued to attend 12-step meetings and group sessions,
volunteered for extra duties, served on the Serenity House council, and acted as a
counselor and mentor for new clients entering Serenity House. Her treatment counselor
described her as "an inspiration to those in our community and a role model to her peers."
Additionally, Denise made significant progress with her case plan regarding the
twins. She told the twins' social worker that she was committed to sobriety, accepted
responsibility for her past choices, and recognized the need to stay away from the "bad
influences" that triggered her substance abuse in the past. The Agency recommended in
that case that services be continued for an additional six months and that Denise begin
unsupervised visits with the twins. The court accepted those recommendations.
Despite this progress, the Agency's position in R.G.'s case remained one of
skepticism about Denise's long-term prospects. Its concerns stemmed from Denise's
history of repeated treatment attempts and relapses, and an inability to provide a suitable
living environment for her children. Although the Agency commended Denise for her
recent success, it questioned Denise's ability to commit to sobriety. R.G.'s young age was
a significant factor in the Agency's recommendations. He had been out of his mother's
care for over a year, and although his visits with Denise had been successful, the Agency
concluded the parent-child relationship was not so significant as to outweigh the benefits
R.G. would obtain from permanency. The Agency also concluded that Richard's parental
relationship with R.G. was not significant or valuable enough to outweigh the benefits of
permanency, particularly given Richard's long and sometimes violent criminal history,
7 his vacillation on reunification with R.G., and his demonstration of some questionable
parenting techniques during visits with R.G.
The Agency therefore recommended termination of parental rights and adoption as
R.G.'s permanent plan. The Agency considered R.G. to be adoptable, but he was not then
in a prospective adoptive placement. He had bonded with his caregiver, but she had
stated she was unwilling to adopt him. At that time an adoptive placement had not yet
been identified.
At the March 19, 2012 pretrial status conference preceding the section 366.26
hearing, Denise filed a section 388 petition seeking modification of the juvenile court's
finding that she had not made significant progress with her case plan and its ruling that
reunification services be terminated. Denise requested, in light of her progress over the
prior months, and also the fact that she was in the process of reunifying with R.G.'s twin
brothers, that the court either place R.G. with her or reinstate reunification services to
allow R.G. to transition into her care. At that same hearing, R.G.'s twin brothers also
moved under section 388 to request that the court recognize their standing to assert the
sibling relationship exception to R.G.'s adoptability, under section 366.26, subdivision
(c)(1)(B)(v). The juvenile court granted the twins' request. It also found that Denise had
made a prima facie showing under section 388, allowing her to go forward and
demonstrate the changed circumstances warranting modification, while at the same time
informing her that she had an "uphill fight" in view of her history.
The contested section 388 hearing was held on March 27, 2012. R.G.'s appointed
counsel indicated she was joining in Denise's section 388 petition to the extent it sought
8 reinstatement of services, and in the event that request was granted, to continue the
366.26 proceeding to the 18-month date. The court then heard testimony from Denise's
treatment counselor, from Denise and from the Agency's social worker.
Denise's counselor, who had daily contact with Denise during her treatment
program at Serenity House, stated that Denise completed all the requirements of her
treatment program, actively participated in parenting classes, group sessions and 12-step
meetings, and worked closely with her sponsor. Her spirituality-based programs were in
the community, and it was Denise's responsibility to transport herself to and from those
meetings. Denise was on the Serenity House Council, which consists of women who are
"role models" and can help new clients in the program. She testified that Denise
remained at the residential home after completing her treatment to learn additional skills
to enable her to maintain sobriety, secure employment and obtain housing. Serenity
House would assist her in those efforts, including providing living space that could
accommodate her children. Denise was at that time on the waiting list for Genesis
House, a program providing transition housing.
Denise related to the court the history of her substance abuse and her prior
dependency cases. She testified that what had changed for her since then is that she had
come to understand what she needs to do to stay clean and sober and that she was willing
to work hard at her recovery. Before, she never followed through with her treatment
program, but this time she had done so. She discovered that she had to stay away from
the "old people and old places" that were triggers for her relapses in the past. Denise also
indicated that growing older had helped her recovery because she cared much more now
9 about taking care of her health. She decided to stay on at Serenity House to continue her
recovery "until I am truly ready to leave." Denise also explained that the twins were in
her care when R.G. was born, and they were together for the first year of his life. She
explained the twins "really loved" R.G. and they had played together all the time.
During his testimony, the social worker handling R.G.'s case stated that although
he applauded Denise's recent efforts at recovery, he was concerned that she had been
living at a secure facility, has not yet obtained employment or housing, and thus had not
been functioning on her own and demonstrating that the factors that compelled removal
of her children had been ameliorated. He acknowledged there would be no risk to R.G. if
Denise were allowed to visit with him in the "supervised environment" of Serenity
House, but he would be concerned as to how she would feed and transport R.G. The
social worker also testified that continuing sibling visitation would be beneficial and not
be detrimental to R.G.
The juvenile court denied Denise's section 388 petition, explaining that Denise's
burden was to "show that circumstances have changed since October 7, 2011," but she
had only demonstrated that circumstances were "changing." (Italics added.) The court
clarified that it was not necessary for Denise to prove that she was "cured," was "all
better," or "out on her own, in her own housing, working, taking care of all her children
before I can find a change." It acknowledged, too, that Denise had successfully
completed treatment over five months and was addressing her issues. However, the court
emphasized, Denise was still in "a protected setting" and therefore "had to deal with no
real stressors . . . hasn't had to deal with a job, with housing . . . hasn't had children in her
10 care [or] had any experience of living in the real world." Given her extensive history of
drug use and failed treatment, the court concluded Denise "has not arrived anywhere near
that place yet where we could say we could trust, with some small level of
confidence . . . that it would be in the child's best interest to either place him with her or
give her more services." The court found there was "no evidence" that it was in R.G.'s
best interest "to gamble and say we are going to place him with mom and hope that she is
able to do what she needs to do." Rather, given R.G.'s age and the fact that he has been
out of his parents' care for over a year, it was in his best interest not to make him wait for
permanence.
The section 366.26 hearing was held two days later. The parties previously had
stipulated that relevant evidence introduced at the section 388 hearing could also be
considered at the section 366.26 hearing. The court accepted the stipulated testimony of
the twins indicating that they cared for their brother, wanted to keep seeing him, and did
not want him to be adopted, at least by someone they did not know. The Agency
reiterated its recommendation that parental rights be terminated and argued that the
beneficial parent-child and sibling exceptions to an adoption plan did not apply. The
juvenile court adopted the agency's recommendation, found that neither exception
applied, and selected adoption as R.G.'s permanent plan.
11 III
DISCUSSION
Legal Principles and Standard of Review
Under section 388, a parent, interested person or the dependent child may petition
the court to change, modify or set aside a previous order on the grounds of changed
circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the
modification has the burden to show, by a preponderance of the evidence, that there is "a
change of circumstance or new evidence," and that the proposed modification is in the
child's best interests. (§ 388, subds. (a), (c); In re Jasmon O. (1994) 8 Cal.4th 398, 415
(Jasmon O.).)
After reunification services have been terminated, section 388 provides an "escape
mechanism" forestalling termination of parental rights by allowing the court to consider a
legitimate change in the parent's circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295,
309 (Marilyn H.).) This procedural mechanism, viewed in the context of the dependency
scheme as a whole, provides the parent due process while accommodating the child's
right to stability and permanency. (Id. at p. 307.) In this context, it is presumed that
continued out-of-home care is in the child's best interest. (Id. at p. 310.) The parent may
rebut that presumption by showing changed circumstances that would warrant further
consideration of reunification. (Ibid.)
In determining whether reunification is in the child's best interests, the juvenile
court should consider a number of factors, including: "(1) the seriousness of the problem
12 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." (Kimberly F. (1997) 56 Cal.App.4th 519, 532
(Kimberly F.).) This list is not meant to be exhaustive. (Ibid.)
We review the grant or denial of a section 388 petition for an abuse of discretion.
(In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) While the abuse of discretion standard
gives the court substantial latitude, "[t]he scope of discretion always resides in the
particular law being applied, i.e., in the 'legal principles governing the subject of [the]
action . . . .' Action that transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an 'abuse' of discretion.
[Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
The Juvenile Court Misapplied Section 388
In this appeal, we are presented with the difficult question of when a parent's
changed circumstances and a child's best interests combine to overcome the presumption
that, after a section 366.26 hearing has been set, a child's need for permanency and
stability takes precedence over a parent's interest in reunification. (Marilyn H., supra,
5 Cal.4th at pp. 309, 310; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The
juvenile court, in a detailed explanation of its reasoning, weighed what it acknowledged
to be Denise's successful steps toward recovery against her history of drug abuse, failed
past treatment efforts, and the fact that she had not long been in recovery. It found that
13 Denise's circumstances, though "changing," had not "changed," and that there was
virtually no evidence demonstrating that it was in R.G.'s best interests to "make him wait
for permanence."
"It is rare that a denial of a section 388 motion merits reversal as an abuse of
discretion." (See Kimberly F., supra, 56 Cal.App.4th at p. 522.) Reversal is not, and
ought not be, lightly undertaken. This is so particularly where, as here, the juvenile court
appears at first glance to have thoughtfully considered all the evidence and correct legal
criteria. Nevertheless, we conclude this is one of those rare cases warranting reversal.
On closer examination of its ruling, we are of the view that the juvenile court, while
acknowledging the standards by which a "change of circumstances" under section 388 is
gauged, erred in applying those standards to Denise's situation, in effect holding her to
the very type of evidential proof the court noted was not necessary for relief to be
granted. Notwithstanding the otherwise thoughtful analysis of the juvenile court, this was
an abuse of discretion. (See City of Sacramento, supra, 207 Cal.App.3d at p. 1297-1298
[an abuse of discretion occurs not only where the court's action "was utterly irrational,"
but also where the court "is mistaken about the scope of its discretion . . . [I]f the trial
court acts in accord with its mistaken view the action is nonetheless error; it is wrong on
the law"].)
When the juvenile court explained the basis for its section 388 ruling, it began by
stating that the law required Denise to show only "a reasonable change in the
circumstances ─ in the ability . . . of the mother to address the problem that led to the
dependency in the first place." (Italics added.) The court observed that Denise did not
14 have to prove she was "cured" of her substance abuse issues, or was functioning
successfully "out on her own," holding down a job, and "in her own housing," to
demonstrate the necessary "change of circumstances." Yet, in denying section 388 relief,
that is precisely the evidence the court deemed was missing, when it emphasized that
Denise had been living "in a protected setting" at Serenity House, with "no real
stressors." "She hasn't had to deal with a job, with housing. She hasn't had children in
her care." Absent evidence of this type of "experience of living in the real world," the
court found, Denise had not demonstrated she had reached the point where the court
could "trust, with some small level of confidence," that it would be in R.G.'s best interest
to at least reinstate services. The court abused its discretion in so concluding because it
raised the legal bar too high, and as a result, failed to apprehend that Denise's evidence
satisfied what the court appeared to recognize at the outset was the correct legal standard.
Kimberly F. requires us to examine the problem that led to the dependency, the
reasons for its continuation, and the degree to which it might be, or actually has been,
resolved or ameliorated. (Kimberly F., supra, 56 Cal.App.4th at pp. 530, 532-533.)
Denise acknowledged her long history (about 15 years) of substance abuse ─ without
question, a serious problem that is an all too common reason children are placed in the
dependency system. (See id., at p. 532 [citing drug abuse as one of the more "intractable"
problems in dependency proceedings].) Denise also admitted to failed attempts at
recovery in the past. Although the Agency and the juvenile court applauded Denise for
her success at Serenity House, her decision to enter that program came nearly eight
months into R.G.'s dependency case. Given her past pattern of use, successful
15 completion of a treatment program, and then relapse, the court and the Agency concluded
that she had not been in recovery long enough to instill any degree of confidence,
however small, that she could sustain it well into the future ─ hence their view that
Denise was "changing," but not "changed."
This conclusion is belied by the evidence. The problem that brought R.G. and his
twin brothers into dependency was Denise's repeated drug use and the resulting neglect of
her children. The law required the juvenile court to determine whether Denise's
circumstances had changed to the point where she had "reasonably" demonstrated "an
ability" to address that problem. (See Kimberly F., supra, 56 Cal.App.4th at pp. 532
[court should consider "degree to which the problem may be easily removed or
ameliorated"].) The significant factor supporting section 388 relief in this case ─ and the
one that, in our view, the juvenile court failed to grasp ─ is not merely that Denise was
able to stay clean and sober for a few months, but rather, that she had fundamentally
altered her approach to recovery. As Denise testified, she realized that prior out-patient
programs were not successful because she remained exposed to the circumstances that
triggered her use. Upon entering Serenity House, she was able to surround herself with
counselors, take full advantage of programs, and obtain and utilize a sponsor. Critically,
Denise accepted responsibility for the bad decisions of her past, identified the reasons for
her prior relapses and had consciously worked to avoid the "bad influences" that
threatened her prior attempts at continued recovery. Her counselor remarked that she had
"grasped the solution to recovery" The Agency presented no evidence contradicting that
evaluation. Further, Denise had become a "role model" and "inspiration" to other women
16 in the program, and an active participant in all activities, including volunteering for
various tasks.
This uncontradicted evidence demonstrates that Denise had not simply been going
through the motions of recovery, but rather, finally appeared to have discovered the keys
to its continued success. Denise showed far more here than mere sobriety over a period
of months. She demonstrated a true "commitment to sobriety," the existence of which the
Agency had questioned, by taking the very steps that were absent in her past attempts at
treatment. To be sure, relapse is always a risk for recovering addicts. (See In re
Clifton B. (2000) 81 Cal.App.4th 415, 423 (Clifton B.) ["relapses are all too common for
a recovering drug user"].) The Agency correctly notes that a number of courts have
denied section 388 modification where the evidence showed a pattern of use, treatment
and relapse. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 686 (Amber M.);
Clifton B., supra, 81 Cal.App.4th at p. 423; In re Casey D. (1999) 70 Cal.App.4th 38, 48-
49 (Casey D.).) Although such evidence undoubtedly bears careful consideration, it must
be viewed in context of the overall record, and each case must be determined on the basis
of its own facts. Such evidence does not and should not give rise to the equivalent of an
irrebutable presumption against reinstating services. Yet, the Agency in this case appears
to have taken something very close to that position, arguing that R.G. "needed stability
and permanency now, not after more futile service offerings." (Italics added.) In other
words, in the Agency's view, Denise already was a lost cause, and because of her history,
any additional services ─ even for just enough time to allow Denise to demonstrate the
ability to maintain a sober lifestyle outside the "protected" Serenity House
17 environment─would be futile. The juvenile court similarly concluded that in light of
Denise's history, and the relatively short period of her sobriety preceding the section 388
petition, it was too much of a "gamble" to grant any additional services.
Section 388 was designed to be an "escape mechanism" ─ in effect, a last chance
─ to avoid termination of parental rights. (See Marilyn H., supra, 5 Cal.4th at p. 309.) It
seems tailor-made for those parents who do not come to grasp the real-life consequences
of the dependency process until late in the day. Indeed, section 388's function of
providing a last-minute reprieve from section 366 termination would seem pointless if a
parent were first required to prove ─ as both the Agency and the juvenile court here
apparently assumed ─ that he or she has sustained sobriety over an extended period of
time, because such proof presumably would have forestalled termination of services in
the first place. If section 388 is to have any substance, a parent should not be written off
merely because she has struggled with addiction and relapse in the past. This is
particularly so when, as here, the preponderance of the evidence indicates she finally
appears to have turned the corner, accepted responsibility for past bad decisions, gained
true insight into the nature of her addiction and its effect on her children, and actively
taken steps to better herself and provide for her children.
One of these steps was Denise's decision to stay on at Serenity House after
completion of her treatment program, until she is able to find employment and affordable
housing. The juvenile court apparently viewed this as a negative factor in the section 388
analysis, interpreting Denise's desire to stay in a positive environment that strengthens
her recovery as evidence that she has not yet demonstrated an inability to deal with the
18 "real world." On the contrary, when considered in the context of the record as a whole,
we view her decision to stay at Serenity House as further evidence that Denise has made
a significant shift in her thinking about her addiction, and recognized the importance of
solidifying her recovery and strengthening her life and parenting skills before fully taking
on the "real world." In any event, there was evidence that she in fact had begun the
process of addressing real world issues ─ for example, by seeking employment on a
regular, consistent basis, applying for affordable housing, and also by attending
community church services and Bible study classes twice a week.
On the foregoing record, the juvenile court's finding that Denise's circumstances
had not changed within the meaning of section 388 is not supported. If anything, the
record overwhelmingly supports the view that Denise had learned the hard lessons of her
past and had developed the insight, maturity and skills to stay on the path of recovery,
thus distinguishing her situation from other cases cited by the Agency. (Cf. In re B.D.
(2008) 159 Cal.App.4th 1218, 1228-1230 [mother had failed to avail herself of services,
"did not understand the impact her inability to provide structure, stability and consistency
had on the children," and was dependent for support on a person with a violent history];
Amber M., supra, 103 Cal.App.4th at pp. 686 [mother completed treatment program but
failed to demonstrate empathy for children or an understanding of their psychological
difficulties]; Clifton B., supra, 81 Cal.App.4th at pp. 420-421 [father could not maintain
sobriety even after children were returned to him after 12-month review].)
19 It is not enough, of course, that Denise's circumstances have changed. She must
also show that it would be R.G.'s best interests to grant relief under section 388. (See
§ 388, subd. (c); Kimberly F., supra, 56 Cal.App.4th at p. 529; Jasmon O., supra,
8 Cal.4th at p. 415.) The court found, there was "not any evidence other than mother's
nice relationship with the child . . . that it would be in [R.G.'s] best interest to either make
him wait for permanence . . . or to place him with the mother at this point." Of particular
significance for the trial court was R.G.'s age. At the time of the section 388 hearing,
R.G. was about two and a half years old, and had been out of his mother's care since
January 2011. The Agency argued, and the trial court apparently agreed, that stability
and permanency were especially important for a young child, and Denise had failed to
show that her interest in reunification outweighed R.G's interest in obtaining a permanent
home.
The second Kimberly F. factor requires consideration of "the strength of relative
bonds between the dependent children to both parent and caretakers." (Kimberly F.,
supra, 56 Cal.App.4th at p. 532.) In the early dependency period, Denise was
inconsistent in her visits with R.G., but once she began her program at Serenity House,
her visits were consistent and entirely successful. She displayed appropriate parental
skills, and loving maternal care. R.G. enthusiastically went to his mother and enjoyed his
visits with her.
The evidence thus showed that a bond had begun to form, or re-form, between
R.G. and Denise. R.G. had also bonded with his caretaker, but importantly, that
20 individual was not able to adopt R.G. As of the date of the section 388 hearing, no
permanent adoptive placement had been arranged, although it appeared a potential
placement had been identified. The social worker testified that allowing continued
supervised visits with Denise would not be detrimental to R.G. In fact, the only concerns
the social worker specifically identified were whether Denise would be able to "feed"
R.G. and "get him from point A to point B." The undisputed evidence showed, however,
that Denise provided food for R.G. at every visit and had demonstrated an ability to
transport herself to and from community programs, such as church services.
Of particular significance in this case is that Denise was in the process of
reunifying with her twin sons. The Agency concluded in February 2012 that, although it
would be premature at that time to place the boys with her, Denise had made "significant
progress in resolving the problems that led to the [twins'] removal from the home, and
has demonstrated the capacity and ability both to complete the objectives of [her]
treatment plan and to provide for the [twins'] safety, protection, physical and emotional
well-being and special needs." Assuming she could maintain that progress, the Agency
believed there was a "substantial probability" of reunification with the twins. The
Agency therefore recommended continuing services and unsupervised visits between
Denise and the twins. There was undisputed evidence that R.G. had enjoyed successful
visits with his brothers; that the boys cared for R.G. and did not want him to be adopted;
and that, according to the social worker, maintaining the sibling relationship would be
"beneficial" and not detrimental to him.
21 This evidence shows a family unit in the process of reunification, and a parent
who, although late in committing to recovery, had made a dramatic turnaround in a short
period of time and was demonstrating skills necessary to meet her children's needs.
Particularly where there was not yet a potentially adoptive placement and therefore no
competing bonds with another caregiver, and where there was no discernable risk to
continuing the mother-child relationship, the evidence strongly favored continued
development of the biological family bonds. (See, e.g. In re Vanessa P. (1995) 38
Cal.App.4th 1763, 1771 ["The purpose of dependency court proceedings is to reunite
families."].)
In the view of the juvenile court, however, two factors in particular militated
against a finding that additional services or immediate placement with Denise would be
in R.G.'s best interests. The first was that not enough time had elapsed for the court to be
assured that Denise would not begin to use again. As explained previously, we do not
believe this factor, when considered in light of all the evidence and the purposes of the
statute, necessitates denial of section 388 relief. The second factor of particular concern
to the juvenile court was R.G.'s young age. "Childhood does not wait for the parent to
become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310.) It was appropriate for the
juvenile court to consider this factor, notwithstanding Denise's likely reunification with
her older sons, because the standard is more rigorous when very young children are
involved. (See, e.g., Casey D., supra, 70 Cal.App.4th at pp. 48-49 [16-month-old child's
age a factor in denying section 388 petition, because child that young is not "able to
22 protect herself if the parents should relapse, in contrast to her older sister"].) But again,
this factor must be viewed in context. Unlike the mother in Casey D., Denise already has
demonstrated a high level of commitment to a sober lifestyle and the ability to put her
children's needs first. (Id. at p. 45.) For example, she embraced and actively participated
in all the programs and services offered at Serenity House, presented her "autobiography"
─ a " 'significant part of the recovery process' " (id. at p. 43) ─ successfully completed
her inpatient treatment plan, was actively involved with a 12-step program, and was
utilizing her sponsor. So successful was she that she became a "role model" and
"inspiration" to other residents. (Cf. id. at p. 43, 48 [mother was not working on 12-step
program and had not yet written her autobiography].) Additionally, Denise had made the
decision to stay on at Serenity House, where her children could stay with her or at least
continue to visit with her, thus ensuring that the children would have a safe environment
and their needs could be met, and Denise could continue to strengthen her parenting skills
so as to lessen the danger of relapse after she went out into the community on her own.
We do not suggest that the juvenile court here was required to return R.G. to
Denise's care based on the evidence presented. Although Denise requested that relief, she
alternatively requested reinstatement of services. R.G.'s counsel supported the petition,
but only to the extent it sought additional services. We hold only that based on the record
evidence, the juvenile court's finding that there was no evidence that any section 388
relief would be in R.G.'s best interests cannot be sustained.
For all the foregoing reasons, we conclude the juvenile court abused its discretion
in denying Denise's section 388 petition, and in failing to order additional services.
23 IV
DISPOSITION
The order denying Denise's section 388 petition is reversed, and consequently, the
order terminating Denise's and Richard's parental rights is also necessarily reversed.
(Lauren R., supra, 148 Cal.App.4th at p. 861; see, Cal. Rules of Court, rule 5.725(a)(2) &
(g) [with limited exceptions, court may not terminate parental rights of only one of two
surviving parents].) The matter is remanded to the juvenile court for further proceedings
consistent with this opinion.
McINTYRE, J.
I CONCUR:
BENKE, Acting P. J.
24 HALLER, J., dissenting:
The majority sets forth persuasive reasons why in its view Denise's modification
petition had merit. However, the trial court also set forth well-reasoned grounds that
support its decision to deny the petition. As a reviewing court, we must defer to the trial
court's findings that are supported by the record.
In a thoughtful oral ruling, the court referenced Denise's "very serious" drug
history, along with a history of "multiple dependencies, multiple removals of children,
multiple relapses, [and] multiple treatment programs." The court recognized the
importance of comparing the severity of Denise's original problem to Denise's progress in
addressing that problem and concluded Denise is just "beginning to give up her life as an
addict." The court was particularly concerned that all of Denise's progress had taken
place in a protected setting where her ability to cope with parental responsibilities,
housing and employment had not been tested and thought it important that Denise herself
was "not ready to leave the protection of Serenity House."
The court was mindful that the Legislature has set forth different considerations
and time constraints for children under the age of three, noting this is a critical time
period in a young child's life. The court found that Denise had failed to establish it would
be in R.G.'s best interest to place him in Denise's care or delay permanency for six
months while Denise was given additional services.
Undoubtedly, this was a close case and Denise's progress was impressive. But, in
my view, because the trial court's factual findings are supported by substantial evidence
and the trial court considered appropriate legal factors in making its decision, I cannot say the trial court abused its discretion. Accordingly, I would affirm the trial court's
decision denying Denise's section 388 petition.
HALLER, J.