In re R.K. CA2/3 ( 2021 )

Filed 5/10/21 In re R.K. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re R.K., A Person Coming B308256
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK24058
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra R. Archuleta, Judge. Reversed
with directions.
Richard L. Knight, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Mother appeals from the juvenile court’s August 18, 2020
order summarily denying her Welfare and Institutions Code1
section 388, subdivision (a)(1) petition that asked the court
to return her then-four-year-old son R.K. to her custody or,
alternatively, to reinstate her family reunification services.
Because we conclude the juvenile court abused its discretion,
we reverse and remand the matter for an evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
1. General background
Mother gave birth to R.K. in November 2015.2 Between
January 2016 and July 2017, the Los Angeles County
Department of Children and Family Services (DCFS)
investigated allegations of mother’s general neglect and abuse
of R.K.3 DCFS determined those allegations were either
unfounded or inconclusive.
After R.K.’s birth, mother was arrested twice: in January
2016 for making threats with intent to terrorize and vandalism,
1 Statutory references are to the Welfare and Institutions
Code.
2 R.K.’s father is not a party to this appeal.
3 Among other things, mother allegedly prostituted and
used drugs in front of R.K., left R.K. with strangers or other
inappropriate babysitters, and neglected his healthcare. She also
was involved in an incident where she allegedly got into a fight
and broke the windows out of a car with a bat. DCFS noted it
received reports of several of the allegations due to an ongoing
dispute among mother, father and the mother of father’s older
children, Lisa.
2
and in May 2016 for loitering for prostitution. (She also had
a juvenile criminal history.) In May 2016, she was convicted
of criminal threats and vandalism after pleading no contest.
In December 2017, she was placed on probation for three years.4
In May 2016, the criminal court also issued a three-year
protective order protecting father and Lisa from mother.5 Mother
was convicted of a misdemeanor on her intent to prostitute
charge in July 2016 and sentenced to three years’ probation.
2. Events leading to dependency
In July 2017, mother and R.K., who was about 20 months
old, were out with a man she had met on a dating site. Mother
left R.K. with her date while she went inside a Carl’s Jr.6 When
she came out, her date had left with R.K. and did not return.
More than three hours later, at about 10:30 p.m., mother
reported her son missing at a sheriff’s station, but left before
completing the report.
Sheriff’s deputies began a search. They could not reach
mother and waited at her home. Mother returned home with her
son at about 3:00 a.m. She told the deputies she had been out
with the man several times before, he had told her not to contact
the police, and she had felt she could locate her son on her own.
4 Before placing mother on formal probation, the court
ordered her to complete a 26-session anger management
counseling program and, from what we can tell, 52 sessions
of domestic violence counseling.
5 Lisa apparently was the victim of mother’s threats and
vandalism.
6 The exact details are unclear.
3
Mother did not explain why she waited three hours to report
her son missing. R.K. was taken into custody for child
endangerment. Mother’s family told the investigating deputy
that mother had a history of prostitution, drug use, and mental
illness.
Later that day, a DCFS social worker interviewed mother.
Mother said she did not return home or answer her phone after
reporting R.K. missing because she wanted to stay in contact
with the man—he had told her not to contact the police and said
he would drop off her son. Mother’s friend took her to pick up
R.K. and then dropped them off near mother’s home.
Mother appeared to be under the influence during the
interview. She told the social worker she had smoked marijuana
and taken a Vicodin for a toothache. DCFS also interviewed
father and mother’s relatives, some of whom confirmed mother
had a history of prostitution. One relative believed mother
was using drugs.
DCFS placed R.K. in protective custody. On July 26, 2017,
DCFS filed a petition under section 300, subdivision (b)(1)
alleging mother placed R.K. at risk of harm due to her substance
abuse and had endangered R.K. by allowing an unrelated male
to have contact with the child resulting in the child’s kidnapping
for several hours. The juvenile court detained R.K. from mother
and ordered she receive monitored visits. Mother was to drug
test weekly. She represented she already was enrolled in
parenting, domestic violence, and anger management classes.
3. Jurisdiction and disposition
On August 7, 2017, mother enrolled in an in-patient
treatment program but left on August 18, 2017, stating she
did not have a drug problem. While there, she tested negative
4
for drugs and alcohol. Since February 2016, mother had been
enrolled in an anger management group at Southern California
Counseling Center (SCCC), presumably as part of her probation.
A progress letter dated August 10, 2017, noted, “[w]hile [mother]
has struggled with substance use, it was not evident in the
groups she attended. Although the group experience was
at times challenging for her to implement the coping skills,
she would still attend and be present.”
On August 25, 2017, DCFS re-interviewed mother about
the incident. Mother told the social worker it was “ ‘all a
misunderstanding.’ ” She denied using drugs, but said she had
a history of smoking “ ‘weed’ ” as a child. She denied current
marijuana use and denied she was under the influence of drugs
or alcohol while caring for R.K. Mother had failed to appear
for on-demand drug testing on July 24 and 25, 2017. DCFS
described mother as “marginally cooperative.” It reported she
“became increasingly upset and argumentative” during the
interview and ultimately left.
Mother pleaded no contest to the petition. On
September 20, 2017, the juvenile court sustained one of the
petition’s two counts against mother, amended as follows:
“The child[’s] mother . . . has a[n]
unresolved history of substance use, and is a
recent user of marijuana, which renders the
mother at times incapable of providing regular
care for the child. In July 2017, the mother
did not follow up appropriately with law
enforcement when minor went missing with
an unrelated male. Said illicit drug use by
5
the child’s mother places the child at risk of
serious harm.”
The juvenile court declared R.K. a dependent, removed him from
mother (and father), and ordered DCFS to provide mother with
family reunification services and monitored visits. The court
ordered mother to participate in a full drug/alcohol program with
aftercare, random or on demand drug/alcohol testing, parenting
classes, and individual counseling. Mother also was to comply
with any criminal court orders and probation conditions.
4. Six-month review period
During this period, R.K. lived with his maternal great-aunt
(MGA), a nurse. He attended daycare while she worked. R.K.
began speech therapy,7 was to begin specialized instruction, and
was prescribed an inhaler for his asthma.
Mother was a no show for seven drug tests between
September 29 and November 7, 2017.8 In November 2017,
mother enrolled in Behavioral Health Services’ (BHS) Pacifica
House residential drug treatment center—she tested positive for
7 R.K. showed a 50 percent delay in his communicative
development.
8 Mother also was a no show for testing on November 21,
2017 and December 26, 2018 (she tested negative on
December 14, 2017), but at that time she was drug testing
through her inpatient treatment program. Their records show
she tested negative on November 30, December 4, 17, 27, and 30,
2017, and January 2 and 6, 2018. Mother also tested negative
for DCFS on January 3 and 29 and February 6 and 23, 2018.
6
methamphetamine during intake.9 She completed the program
on January 9, 2018.
Mother enrolled in an outpatient program with housing
that same day, but the program went out of business at the end
of February 2018. During the six weeks mother was enrolled, she
had good attendance at her group classes and her counselor had
no concerns about mother using any substances. Mother still
needed “to learn more about recovery,” however. According to
the counselor, mother had tested for drugs twice and both results
were negative. Mother was participating in 12-step meetings,
as well.
Mother attended anger management group sessions and
parenting classes through SCCC and completed an eight-week
parenting program while at Pacifica House. Mother did not want
to enroll in individual counseling. DCFS described mother as
“engaged in services” and noted “she has been able to address
case issues through substance abuse treatment, parenting, anger
management and aftercare.” Nevertheless, DCFS remained
concerned about mother relapsing.
Mother had been visiting R.K. twice weekly. DCFS notes
state R.K. and mother had a close relationship and “consistent
quality visits.” R.K. was attached to and loved his mother.
DCFS approved mother for unmonitored visits on February 27,
2018.
9 Mother had tried to enroll in Pacifica House in October
2017 but did not qualify. She later told the social worker that
she “used meth for the sole purpose of getting into an inpatient
program.”
7
In its April 2, 2018 last minute information report (LMI)
to the court, DCFS noted mother was currently homeless and
staying with a friend. She tested negative at a make-up drug
test on March 8, 2018. The LMI described mother as “partially
compliant in services” because she had not enrolled in individual
counseling.10 The juvenile court continued the matter for contest
on May 31, 2018.
In a second LMI filed May 22, 2018, DCFS noted mother
had tested negative for drugs and alcohol at three tests, but
had missed two tests. On April 17, 2018, mother had enrolled
in a new outpatient treatment program at BHS that included
six group classes per week, individual counseling each week,
and random drug testing.
In late April, mother did not return R.K. after an
unmonitored Friday visit; she kept him over the weekend. DCFS
changed mother’s visits back to monitored, but recommended
reunification services continue. DCFS placed R.K. with a new
non-relative caregiver on April 30—the day mother returned R.K.
At the May 31, 2018 contested review hearing, the juvenile
court found mother had made partial progress toward alleviating
or mitigating the causes of the dependency. The court continued
reunification services with monitored visits.
5. 12-month review period
As of September 10, 2018, R.K. remained placed with
the non-relative caregiver. He received speech and individual
10 In February 2018, the Department of Mental Health
informed mother she did not qualify for its services. DCFS
referred mother to counseling elsewhere.
8
therapy—his speech had improved, and his anger and aggression
had decreased.
Mother was compliant with her monitored and
unmonitored visits.11 R.K. was developing a bond with mother.
At first, R.K. would throw a tantrum when the caregiver left him
with mother. As visits progressed, R.K. became happy to see
mother. He called her “ ‘mommy,’ ” smiled and walked directly
to mother, and stopped throwing a tantrum when the caregiver
left. He threw tantrums when the caregiver picked him up
because he wanted to stay with mother.
During this time, mother lived in BHS’s recovery bridge
housing for three months and then moved into her uncle’s two-
bedroom home. She completed the BHS outpatient treatment
program in August 2018 and enrolled in recovery support
services. Mother attended at least three group sessions per week,
including for parenting and relapse prevention, and met weekly
with her individual counselor. Mother participated in random
drug testing and her tests had been negative.12 Mother also
enrolled in individual counseling at SCCC. She had attended 13
sessions as of August 13, 2018 and was “progressing positively.”
DCFS reported mother had been compliant in all areas
of her case plan. Mother had a full-time job, and her uncle was
willing to allow her and R.K. to stay with him. Nevertheless,
11 Mother’s monitored visits were at the DCFS office. On
August 24, 2018, DCFS liberalized mother’s visits to five hours
of unmonitored visitation weekly.
12 DCFS noted mother’s last 17 tests, from April 17, 2018 to
August 22, 2018, had been negative.
9
the social worker was concerned that mother, who did not have
a driver’s license, was driving R.K. during visits. Mother denied
driving. The social worker also suspected mother was “ ‘cleaning
her system’ to test negative” at her drug tests, and “ ‘[t]rapping,’ ”
meaning prostituting, based on text messages purportedly from
mother that her former roommate had given the social worker.
Mother denied taking drugs, cleaning her system to avoid
a positive test, or prostituting. She claimed “people are just,
‘hating on her’ and do not want to see her get her son back.”
DCFS informed the court in its September 26, 2018 LMI
that a social worker had seen mother drive R.K. to meet the
caregiver. Mother still did not have a driver’s license. At a later
meeting, mother again denied driving.13 She also continued to
deny trying to cleanse her system or prostituting when DCFS
asked her about the text messages.
At the September hearing, the court limited mother’s visits
to monitored, increased the frequency of mother’s testing, and
ordered mother not to transport R.K. The review hearing was
continued to November 14, 2018.
DCFS submitted two LMIs on November 14, 2018. A social
worker had “googled” mother’s contact telephone number and
discovered a website, “harlothub.com,” with a picture of a naked
woman looking over her shoulder and covering her breast.
Mother had been a no show for drug testing on
September 27, October 23, and November 1, 2018, but tested
13 DCFS personnel watched mother drive away from that
meeting, however. She claimed she was “only driving because
she had to go to work.”
10
negative on July 26 and October 4 and 11, 2018. DCFS noted
a counselor from BHS told a social worker that, during a group
meeting on September 25, 2018, mother “blurted out that she
has been using drugs and that she has been using something
to flush out her system.”
Mother also was refusing to give the social worker her new
telephone number. She was upset that her unmonitored visits
with R.K. had been revoked. Nevertheless, mother maintained
contact with R.K.’s caregiver and her visits were appropriate.
DCFS noted mother and the caregiver appeared to have
developed a working relationship.14 DCFS assigned a new social
worker to the case on October 11, 2018. Mother was maintaining
weekly contact with her.
Mother enrolled in an inpatient program at BHS’s Flossie
Lewis center on November 8, 2018. According to a September 25,
2018 progress report, mother’s drug tests had been negative.
Mother provided evidence of her attendance at 12-step meetings,
too.
Mother withdrew her contest at the November 14, 2018
review hearing. The juvenile court found mother partially
compliant with her progress and continued her reunification
services. The court gave DCFS discretion to liberalize mother’s
visits upon her further compliance with the case plan.
6. 18-month review period
As of January 2019, mother had been maintaining regular,
frequent contact with her social worker. She was working
14 On September 25, 2018, R.K. was placed with a new
non-relative caregiver, D.W., a retired LVN.
11
part-time and had obtained stable, subsidized housing through
the probation department. Mother had left the BHS inpatient
treatment program on December 6, 2018, however, when the
probation department referred her to the housing program.
BHS noted she had participated in “numerous” groups and
classes and tested negative for drugs. Mother enrolled in
an outpatient program at Motivational Recovery Services
on December 12, 2018. She also continued to participate
in individual therapy through SCCC.
During the reporting period, mother’s weekly, random
DCFS drug tests were negative, and mother continued to test
through her outpatient program.
Mother continued to have regular, weekly, monitored visits
with R.K. She engaged lovingly with her son and was able to
manage his behavior. She brought food, toys, and clothing for
him. R.K. appeared to be attached to mother and cried for her
when each visit ended. Mother acknowledged she had “ ‘messed
up’ ” in the past, but said remaining sober was her priority.
She did not want to miss “any more moments” of R.K.’s life.
DCFS noted R.K. appeared “to have a loving bond and
attachment” with both his parents and the caregiver D.W. D.W.
was committed to caring for R.K., now age three, and to ensuring
parents had access to him. R.K. was in daycare and appeared to
be developing appropriately. D.W. asked that R.K. receive speech
therapy and therapy to address his anger and refusal to potty-
train, however. The social worker recommended the court grant
DCFS discretion to further liberalize visits and continue the
matter for further assessment.
On January 28, 2019, the court ordered overnight visits
for mother. DCFS could stop them if she missed any tests or
12
tested dirty. The court set mother’s contest for a possible home
of parent order for April 16, 2019.
In its April 4, 2019 interim review report, DCFS noted
mother continued to make herself available to the social worker.
Mother said she continued to participate in her outpatient
program. Mother’s therapist at SCCC said mother maintained
regular phone contact with her. Their last face-to-face meeting
was at the end of February 2019 because that agency had
terminated mother’s services. The therapist had moved to a new
agency, but intended to continue to provide mother with pro bono
counseling by telephone.
D.W. continued to provide for R.K., and he appeared
to have a “loving bond and attachment” to her. R.K. also had
a strong, healthy bond and attachment to mother. His speech
had improved, and he had begun to potty-train.
Mother began her weekly overnight visits. In February
2019, mother’s social worker made an unannounced visit when
R.K. was with mother and saw a pair of men’s shoes in the living
room. Mother said they were a gift for a friend. She denied
having any visitors or dating anyone. She also denied having
contact with father, though she said she would be open to
joint visits. The social worker reminded mother she could not
communicate with father due to the restraining order. Mother
had overnight visits on February 9, 16, 23, and March 2, 2019.
On March 6, 2019, father accused mother of driving
with R.K. Although the social worker could not verify this, she
modified mother’s visits to unmonitored day visits at the mall
13
for R.K.’s safety.15 Mother’s friend called to tell the social worker
that she drove mother for visits and father was lying.
Father also told the social worker that mother arrived
at a public location where father was meeting his daughter and
Lisa. Mother allegedly confronted and verbally attacked them,
and physically attacked and threatened father, yelling, “ ‘I’ll
air you out!’ ‘I’ll have you aired out!’ ” Father claimed mother
had been stalking and contacting him and using R.K. “as ‘bait’ ”
to start a conversation. He alleged mother still used drugs.
Mother described events differently. She coincidentally
arrived at the same location as father and his family. She also
said she was a passenger in the car, not the driver, and Lisa
had assaulted her through the car window.
Mother told the social worker father had been living with
her since December 10, 2018, because he was homeless. Father
denied living with mother.
On March 23, 2019, the social worker again spoke to
mother about these events. Father continued to claim mother
was trying to get in touch with him. Mother denied the claim,
said she was “done” with father, and felt he had tried to
“ ‘sabotage everything’ ” by lying to DCFS. She said she
had fallen into a depression.
Mother’s drug tests were mostly negative during the
reporting period. She missed one drug test on March 21, 2019.
Mother’s March 27, 2019 test was positive for amphetamine/
15 After that, mother had weekly unmonitored visits on
Saturdays and some Sundays and called R.K. regularly.
14
methamphetamine. She denied using substances. DCFS
immediately restricted mother to monitored visits.
DCFS believed both parents had repeatedly lied and misled
the social worker. DCFS believed mother continued to struggle
with substance use, anger management, and impulse control.
She also had violated the restraining order.16 It was “clear”
to DCFS that “parents’ strained and tumultuous relationship
with one another ha[d] impacted each of their ability to safely
parent [R.K.] and to prioritize [his] needs and wellbeing, over
their issues with one another.” DCFS recommended the court
terminate reunification services.
In its April 16, 2019 LMI, DCFS added that on April 3,
2019, mother’s outpatient program had administratively
discharged her after she failed to have a required physical exam
by February 8, 2019, and had not participated in group sessions
since February 27, 2019.
At the April 16, 2019 hearing, the juvenile court found
mother’s progress to be minimal and terminated reunification
services. The court set a permanency planning hearing for
August 13, 2019.
7. Post-reunification development
In its August 1, 2019 section 366.26 report, DCFS advised
the court that D.W. wanted to provide R.K. permanency through
a legal guardianship due to R.K.’s ongoing relationship with his
parents and extended family. At this point, R.K. had been living
with D.W. for more than 10 months. He called D.W. “ ‘auntie’ ”
16 The restraining order against mother did not expire until
May 2019.
15
and appeared to have a loving bond and attachment to her.
D.W. treated R.K. as her own child. She was committed to caring
for him, but also hoped to help R.K. maintain his family ties.
R.K. was too young to express his wishes.
R.K. continued to visit with mother every Saturday
and/or Sunday and had occasional visits with his maternal aunt.
D.W. said the visits went well, and R.K. transitioned smoothly.
In between visits, mother contacted D.W. to speak to R.K. and
to ask about his well-being.
In late June 2019, maternal aunt, who was approved to
monitor mother’s visits, asked for and was granted an overnight
visit. Afterward, the social worker interviewed R.K., who was
three at the time. Based on his answers, the social worker
believed maternal aunt had allowed mother to have unapproved
contact with R.K. at mother’s home and that mother had driven
R.K. Mother said R.K. was “ ‘lying’ ” and she had visited with
him, but not at her house. The aunt said they had visited at
mother’s house but did not spend the night.
Mother remained employed part-time. She told the social
worker she planned to continue individual counseling and an
outpatient treatment program but did not provide verification
of her participation. Between April 5 and July 12, 2019, mother
missed eight out of 10 drug tests and had two negative tests.
DCFS filed an LMI the day of the August 13, 2019 hearing
to inform the court that two Facebook pages—which appeared
to belong to mother—included videos of mother driving a car
and implicating herself in gang affiliation, prostitution, and
substance use. DCFS found it “clear that [mother’s] lifestyle
indicates that she is not ready nor willing to parent, nor to
change her behaviors.”
16
DCFS recommended the court appoint D.W. as R.K.’s legal
guardian. The court continued the permanent placement hearing
to December 10, 2019, and ordered maternal aunt could no longer
monitor mother’s visits.
In its September 25, 2019 status review report, DCFS
noted mother continued to maintain regular contact, but
was “verbally assaultive” and used “foul language” when
communicating with the social worker.
R.K. seemed to be well-adjusted in D.W.’s home. He
appeared to have a bond and attachment with her, as well as
with her extended family members and friends. He had a
“loving and friendly relationship” with other children in the
home. R.K.’s speech and verbal skills had “greatly improved,”
as had his ability to manage his anger and frustration.
Mother maintained regular visitation with R.K. every
Saturday and Sunday, supervised by D.W. The visits went well
and DCFS recommended they continue. Mother also regularly
asked D.W. about R.K.’s well-being.
Mother told DCFS she wanted to drug test and to re-enroll
in a drug treatment program. DCFS believed mother continued
to struggle with substance use and managing her anger. It
continued to recommend legal guardianship as R.K.’s permanent
plan.
In early October 2019 mother provided DCFS with updated
information about her participation in previously-ordered
services to provide to the court: mother attended an intake
appointment on September 12, 2019 for mental health services
but was referred to other agencies; on September 3, 2019, mother
re-enrolled in her outpatient treatment program at Motivational
Recovery Services where she would be randomly tested bi-weekly
17
and focus on relapse prevention; as of September 30, 2019,
mother was participating in employment services through
Chrysalis; mother’s former therapist was still in touch with
her and helping mother find a new counseling facility; mother
attended a DCFS parent orientation on September 20, 2019;
and on September 24, 2019, mother began participating in
services at Anti-Recidivism Coalition (ARC).
On October 15, 2019, the juvenile court ordered legal
guardianship as R.K.’s permanent plan.
8. First section 388 petition and section 366.26 hearing
On December 9, 2019, mother filed a petition under
section 388 asking that the court change its April 16, 2019 order
terminating her reunification services. The petition alleged
mother “demonstrated that she has rehabilitated by completing
an outpatient treatment program, obtaining a sponsor, and
participating in individual counseling. Mother continues to
engage in 12-step meetings and aftercare to further address
her sobriety. Mother has addressed the issues that brought
this family to the court’s attention.”
Mother attached letters from her providers dated between
November 27 and December 9, 2019, to confirm her progress:
• Motivational Recovery Services confirmed mother had
completed its outpatient program; had tested negative for
drugs on a monthly basis (twice) since enrolling in September;
and had enrolled in recovery supportive services on
December 4, 2019; and noted mother “has been able to
identify [her] triggers and has developed a plan to deal
with these triggers by using her new tools of recovery.”
18
• ARC confirmed mother had enrolled in individual counseling
and had attended seven weekly therapy sessions since mid-
October 2019.
• Mother’s sponsor—a certified addiction treatment counselor—
noted she became mother’s sponsor in August 2019; mother
had “ ‘hit the ground running’ to accomplish her goals at
establishing a solid foundation in her recovery, in order to
sustain her sobriety”; and mother was attending at least
four meetings a week and met with her weekly.
• Brilliant Corners confirmed mother had enrolled in its case
management and employment services program in August
2018, had made “tremendous progress” during her enrollment,
and continued to be engaged in it.
On December 10, 2019, the juvenile court heard argument
as to whether mother’s petition made a prima facie showing. The
court agreed with DCFS that mother’s evidence was insufficient
“to demonstrate that there is an actual change of circumstance.”
The court also found mother failed to demonstrate how leaving
R.K. “in limbo” while she engaged in additional reunification
services—beyond the 18-month maximum already provided—
was in R.K.’s best interests. The court allowed mother to argue.
She asserted she had been testing negative every week, was
visiting R.K. regularly, applying herself, and “still showing up . . .
[and] being there for [her] child.” Because mother had not met
her prima facie burden, the court denied the petition without
a hearing.
The court then found R.K. was adoptable, it would be
detrimental to R.K. to remove him from D.W.—who was willing
to provide R.K. permanence through legal guardianship—and it
would be detrimental to return R.K. to either parent’s physical
19
custody. The court granted the guardianship, appointed D.W.
legal guardian of R.K., and terminated its jurisdiction.
9. Second section 388 petition
On August 3, 2020, mother filed a second section 388
petition asking the court to change its April 16, 2019 order
terminating reunification services by either returning R.K.
to her custody or reinstating her reunification services. Mother
alleged she now was “living responsibly and independently”;
had been sober for “over 10 months”; had a sponsor and attended
meetings three to four times a week;17 had completed various
programs, confirmed through exhibits; continued to attend
individual therapy; and obtained a full-time job with benefits
through the painters’ union. Mother declared she was no longer
“gang-involved” or involved in prostitution and had “closed all
my social media pages down that were previously related to
that old lifestyle.”
Mother again attached documents, dated between April
and July 2020, to confirm her progress:
• An ARC life coach indicated mother had completed ARC’s
bootcamp—an intensive training program designed to place
participants in a union apprenticeship—in May 2020; the
program was “rigorous” with “high standards,” required
regular drug testing, and had a strict attendance policy;
mother had “worked incredibly hard” and tested negative
for all random drug tests; and mother was employed as
an apprentice with the painters’ union as of June 2020.
17 Mother continued to attend 12-step meetings and meet
with her sponsor via Zoom when the COVID-19 pandemic hit.
20
• The ARC program director and an ARC therapist confirmed
mother continued to attend weekly, individual counseling
sessions; as of June 2020, mother had “successfully remained
sober and recently celebrated 9 months of sobriety,” had a
sponsor, was actively engaged in recovery group work outside
of her individual therapy, had completed a 10-week anger
management course, and had completed a parenting course
at another organization.
• Mother’s sponsor confirmed her continued participation in
meetings.
• Brilliant Corners repeated mother’s accomplishments.
• Journey Out confirmed mother had completed an eight-session
prostitution diversion program in April 2020, and described
mother as a “model [p]articipant” and a “great example”
for others in the program.
• Motivational Recovery Services reported mother had
completed, as of March 12, 2020, the outpatient program she
began in September 2019 and was participating in recovery
support services, including attending weekly group and
individual sessions; and confirmed mother’s test results
had been negative since September 2019.
• Certificates confirmed mother’s completion of a 15-session
parenting class in June 2020 and 10 weeks of group anger
management therapy in April 2020.
• Mother’s interim driver’s license issued July 15, 2020.
On August 18, 2020, the juvenile court, through a different
judicial officer, denied mother’s petition without a hearing
on the ground it did “not state new evidence or a change of
circumstances.”
21
DISCUSSION
Mother’s sole contention on appeal is that the juvenile court
abused its discretion by denying her August 2020 section 388
petition without first providing her an evidentiary hearing.
1. Applicable law and standard of review
Section 388 provides for modification of juvenile court
orders when the moving party—here, mother—can demonstrate
a change of circumstance or new evidence and that the requested
change is in the child’s best interests. (§ 388, subd.(a)(1); In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) The juvenile court
must hold an evidentiary hearing on a section 388 petition only
if the petitioner makes a prima facie showing of both elements.
(Cal. Rules of Court, rule 5.570(d)(1), (e), (f); In re Marilyn H.
(1993) 5 Cal.4th 295, 310; In re G.B. (2014) 227 Cal.App.4th 1147,
1157.) “A prima facie case is made if the allegations demonstrate
that these two elements are supported by probable cause.” (In re
G.B., at p. 1157.) Thus, the parent is “not required to establish
a probability of prevailing on [the] petition.” (In re Aljamie D.
(2000) 84 Cal.App.4th 424, 432-433 (Aljamie D.).)
Section 388 was designed as an “ ‘ “escape mechanism” ’. . .
[to] allow[ ] the juvenile court to consider a legitimate change in
the parent’s circumstances after reunification services have been
terminated.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
Thus, the court must construe the petition liberally in favor of
its sufficiency, so that “if the petition presents any evidence that
a hearing would promote the best interests of the child, the court
must order the hearing.” (In re Angel B. (2002) 97 Cal.App.4th
454, 460-461 (Angel B.).) “The petition may not be conclusory. . . .
Successful petitions have included declarations or other
attachments which demonstrate the showing the petitioner
22
will make” at the hearing. (In re Anthony W. (2001) 87
Cal.App.4th 246, 250.) A prima facie case “is not made, however,
if the allegations would fail to sustain a favorable decision even
if they were found to be true at a hearing.” (In re G.B., supra,
227 Cal.App.4th at p. 1157.)
Moreover, the allegations must “describe specifically how
the petition will advance the child’s best interests.” (In re G.B.,
supra, 227 Cal.App.4th at p. 1157.) The parent’s showing is
more difficult after reunification services are terminated—
which occurred here in April 2019—as the parent’s “interest in
the care, custody and companionship of the child [is] no longer
paramount.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
At this point, “ ‘the focus shifts to the needs of the child for
permanency and stability’ [citation], and in fact, there is a
rebuttable presumption that continued foster care is in the
best interests of the child.” (Ibid.) “In determining whether
the petition makes the required showing, the court may consider
the entire factual and procedural history of the case.” (In re K.L.
(2016) 248 Cal.App.4th 52, 62.)
We review the summary denial of a section 388 petition
for abuse of discretion. (In re G.B., supra, 227 Cal.App.4th at
p. 1158.) An abuse of discretion occurs when the juvenile court
exceeds the bounds of reason by making a determination that
is arbitrary, capricious, or patently absurd. (In re Marcelo B.
(2012) 209 Cal.App.4th 635, 642.)
2. The court abused its discretion when it denied mother
a hearing on her section 388 petition
The juvenile court summarily denied mother’s second
petition by checking the box on the judicial council form that the
petition did not state new evidence or a change of circumstances.
23
To support a section 388 petition, the change in circumstance
or new evidence must demonstrate “the problem that initially
brought the child within the dependency system” has been
“removed or ameliorated.” (In re A.A. (2012) 203 Cal.App.4th
597, 612 [explained differently, “the circumstances must relate
to the purpose of the order and be such that the modification
of the prior order is appropriate”].)
When the court denied mother’s first petition in December
2019, it concluded mother’s evidence she had participated in
(and apparently completed) an outpatient treatment program,
had obtained a sponsor and was going to meetings, and had
participated in counseling, did not demonstrate “an actual change
of circumstance.” Thus, to the extent mother’s August petition
reasserts that evidence, it does not provide anything new.
We also agree mother’s evidence that in 2020 she completed
new anger management and parenting classes, and continued
to participate in individual therapy, group therapy, and
12-step meetings, is not really “new evidence” (or a change
of circumstance). As DCFS notes, mother had engaged in all
of those services—through the same or different providers—
before the court terminated her reunification services. We cannot
conclude, however, that mother’s petition and attached exhibits
“fail[ed] to reveal any change of circumstance or new evidence
[that] might require a change of order.” (In re Jeremy W. (1992)
3 Cal.App.4th 1407, 1413-1414, italics added (Jeremy W.).)
Most importantly, while mother had only about two months
of sobriety in December 2019—based on her re-start of the
outpatient treatment in September 2019—by August 2020,
mother had maintained her sobriety for more than 10 months,
24
confirmed by mother’s service providers.18 Moreover, mother did
not limit her efforts to sustain her sobriety and cease her risky
behavior—problems directly relating to R.K.’s removal—to her
participation in aftercare meetings, groups, and counseling, as
she had before. Mother presented evidence she had: completed
ARC’s bootcamp and met its high standards (which required drug
testing), enabling her to secure a full-time, stable union job with
benefits; completed a prostitution diversion program, staying on
to support and to be an example for other women in the program;
and removed all social media traces of her prior involvement in
prostitution and gang affiliation.
Although not alleged in the sustained section 300 petition,
mother’s apparent gang affiliation and prostitution undoubtedly
contributed to her substance use and put R.K. at risk, affecting
her ability to reunify with him.19 As DCFS noted in its August
2019 LMI, mother’s continuation with that lifestyle demonstrated
“she [was] not ready nor willing to parent, nor to change
her behaviors.” Liberally construed, mother’s new evidence
showed she took significant steps to renounce that lifestyle,
demonstrating her resolve not only to maintain her sobriety
18 As DCFS notes, mother did not provide toxicology reports
with her petition. But mother did not simply allege this fact—
mother’s providers confirmed mother had been drug testing
and had tested negative, and ARC confirmed mother had
“successfully remained sober.”
19 For example, in a text message mother purportedly sent to
her former roommate she said she couldn’t “trap sober.” Mother
also had a history of leaving R.K. with inappropriate babysitters
while she prostituted or prostituting with him.
25
and change her behavior, but also to make good choices for
R.K’s benefit. Mother’s ability to graduate from ARC’s rigorous
bootcamp (one of only five women in her cohort), and to secure
a union job with benefits, also showed her commitment to stay
sober and to provide R.K. with security and stability.20
We do not disagree with DCFS’s description of mother’s
past behavior as reflecting a “pattern of successfully participating
in and completing treatment programs,” followed by “repeatedly
engag[ing] in dangerous and risky behaviors without regard
for [R.K.’s] wellbeing.” We cannot agree, however, with DCFS’s
assertion that, given this past behavior, mother merely presented
evidence of “changing,” rather than “changed,” circumstances.
(See, e.g., In re Casey D. (1999) 70 Cal.App.4th 38, 47 [“petition
which alleges merely changing circumstances . . . does not
promote stability for the child or the child’s best interests” where
selection of child’s permanent home is delayed to see if parent
“might be able to reunify at some future point”].)21 Rather,
as we discussed, mother’s sobriety in combination with the
new evidence of the other steps mother took to stabilize her life
reflects a significant change in her lifestyle that, if credited,
shows she has broken that pattern. In any event, as mother
20 Mother declared R.K. motivated her “to live responsibly
to be at work every day, early, and take care of myself so I can
best take care of him.”
21 In contrast to mother, the parent in In re Casey D., supra,
70 Cal.App.4th at pp. 42-43, 48-49, had about four months’
sobriety, had not begun a 12-step program, and had not
completed a “significant requirement” of her treatment plan.
26
notes, to obtain a hearing she needed only to present evidence of
“any change of circumstance or new evidence which might require
a change of order.” (Jeremy W., supra, 3 Cal.App.4th at pp. 1413-
1414, italics added; see § 388, subd. (a)(1) [parent may petition
to modify prior order “upon grounds of change of circumstance
or new evidence” (italics added)].)
Similarly, we reject DCFS’s contention that 10 months
of sobriety was too brief a period for mother to demonstrate she
had “sufficiently ameliorated the issues” that resulted in R.K.’s
dependency for purposes of making a prima facie showing.
Although 10 plus months, around 330 days,22 is shorter than
the length of parents’ recovery in the cases where an evidentiary
hearing was required that mother cites (e.g., Jeremy W., supra,
3 Cal.App.4th at pp. 1413, 1415 [mother was sober for more than
one year]; Aljamie D., supra, 84 Cal.App.4th at p. 432 [mother
had clean drug tests for more than two years]), it is much longer
than the three months to 200 days of sobriety deemed insufficient
to show a change of circumstance in the cases DCFS cites (e.g.,
In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081; In re Mary G.
(2007) 151 Cal.App.4th 184, 206; In re Cliffton B. (2000) 81
Cal.App.4th 415, 423-424; see also In re Kimberly F. (1997)
56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction
that one must be ‘clean’ for a much longer period than 120 days
to show real reform.”]).
22 Mother tested negative for drugs on September 6, 2019 at
her outpatient treatment program and filed her petition 332 days
later, on August 3, 2020.
27
In any event, as we have said, mother “was not required to
establish a probability of prevailing on her petition.” (Aljamie D.,
supra, 84 Cal.App.4th at pp. 432-433, italics added.) Mother
made a showing that she had left behind her dangerous lifestyle,
remained sober, and was capable of providing a safe and stable
environment for R.K.—in other words, that she had ameliorated
the primary reasons for R.K.’s out-of-home placement. Even after
viewing the totality of the evidence in the light most favorable
to the juvenile court’s order, the only reasonable conclusion is
that mother’s new evidence—if credited and liberally construed—
established a prima facie case of a change of circumstance.
Accordingly, the juvenile court abused its discretion when it
found otherwise.
The court did not comment on mother’s allegation that
her proposed change—the return of R.K. to her custody or
reinstatement of her reunification services—would be in R.K.’s
best interest. “[I]f a parent makes a prima facie showing of a
change of circumstance such that a proposed change in custody
might be in the child’s best interest, then the juvenile court must
hold a hearing.” (Angel B., supra, 97 Cal.App.4th at pp. 461,
463-464 [noting the factors vary with each case, but “each child’s
best interests would necessarily involve eliminating the specific
factors that required placement outside the parent’s home”].)
The bond between R.K. and mother was never disputed
during the dependency case. Mother’s petition alleged they
continued to “maintain[ ] a deep bond,” she loved R.K., and
wanted to provide for and protect him. She described their
weekly visits and daily telephone conversations and how she
has provided for R.K.’s needs. Mother also declared she was
ready and wanted “to be able to provide [R.K.] with stability
28
and security, and provide him with all the opportunities and
care [she] never had while growing up.” She wanted “to be able
to read with him, help him with homework, provide him with
healthy food and the clothes he needs, take him on regular
outings, give him emotional support and guidance, have
conversations with him, and generally provide care for him
on a daily basis.”
The return of a child to his parent is the most permanent
plan and affords greater stability than legal guardianship. (See
In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1218 [describing
return to parental custody as “the most desirable permanent
plan,” in case where parent sought to terminate legal
guardianship under section 388]; In re J.C. (2014) 226
Cal.App.4th 503, 527 [after termination of reunification services,
section 388 petition seeking return of custody or to reinstate
services “must establish how such a change will advance the
child’s need for permanency and stability”].) If mother can now
safely care for R.K., as she alleged in her petition, then returning
R.K. to her custody might be in his best interests given their
undisputed ongoing relationship and bond. Accordingly, mother’s
petition established a prima facie case that setting aside the
court’s order terminating reunification services might be in
R.K.’s best interests, requiring the court to hold an evidentiary
hearing. (Angel B., supra, 97 Cal.App.4th at p. 461.)
We express no opinion on how the court should rule on
the merits of mother’s section 388 petition. We decide only
that mother made the required prima facie showing to merit
a hearing—the existence of new evidence or a change of
circumstance, and the presentation of some “ ‘evidence that
29
a hearing would promote the best interests of the child.’ ”
(Jeremy W., supra, 3 Cal.App.4th at p. 1414.)23
DISPOSITION
The August 18, 2020 order denying mother’s August 3,
2020 petition under Welfare and Institutions Code section 388
is reversed. The matter is remanded for the juvenile court
to conduct an evidentiary hearing on the merits of mother’s
section 388 petition, including on any evidence developed
subsequent to the filing of her petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. ADAMS, J.*
23 At a hearing the court will be able to obtain input from
R.K.’s legal guardian, DCFS, minor’s counsel, and possibly R.K.,
who was too young to express his preferences to DCFS.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
30