Filed 5/11/15 In re H.W. CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                DIVISION SEVEN
In re H.W., et al., Persons Coming Under                             B259045
the Juvenile Court Law.
                                                                    (L.A. Co. Super. Ct. No. CK93838)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
         Plaintiff and Respondent,
         v.
ANITA R. et al.,
         Defendants and Appellants.


                   APPEALS from orders of the Superior Court of Los Angeles County,
Stephen Marpet, Juvenile Court Referee. Reversed and remanded as to Anita R.
Dismissed as to James W.
                   Marissa Coffey, under appointment by the Court of Appeal, for Defendant
and Appellant Anita R.
                   Terence M. Chucas, under appointment by the Court of Appeal, for
Defendant and Appellant James W.
                   Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Melinda A. Green, Deputy County Counsel, for Plaintiff and Respondent.
                                     _____________________________
       Anita R. (Mother), and James W. (Father) separately appeal from the juvenile
court’s orders denying a petition for modification under Welfare and Institutions Code1
section 388 and terminating parental rights over their daughter H.W. under section
366.26. Mother contends the juvenile court abused its discretion in denying the section
388 petition because she demonstrated that her request for reinstatement of family
reunification services for six months and liberalized visits was supported by a change in
circumstances and the best interests of the child. Mother also argues the court should not
have terminated parental rights because she demonstrated application of the beneficial
parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to the termination of her
parental rights. For the reasons articulated below, we agree that the court erred in
denying the section 388 petition, and accordingly reverse. 2


                   FACTUAL AND PROCEDURAL BACKGROUND
       A.     The Family and Pre-Dependency Petition Contact with the Department
of Children and Family Services
       The family subject of these proceedings consists of Mother, Father and their child




1
        Unless otherwise indicated all further code references are to the Welfare and
Institutions Code.
2
        Father filed a separate notice of appeal. In his opening brief and reply, he joined
in Mother’s arguments. Father has not, however, asserted any additional or separate
arguments with respect to a summary denial of his section 388 petition or the termination
of his parental rights. As a result, Father has waived any claim with respect to the court’s
ruling on his section 388 petition by failing to assert any arguments on appeal. In
addition, his challenge to the termination of parental rights is moot in view of our
conclusion here that the order terminating parental rights must be reversed. (See In re
A.L. (2010) 190 Cal.App.4th 75, 78-79 [holding that the reversal of juvenile court’s
denial of mother’s petition for modification of the order terminating her reunification
services had the effect of reinstating both parents’ parental rights, because a decision on
mother’s petition for modification was a necessary antecedent to the holding of the
hearing terminating both parents’ parental rights].) Father’s appeal is dismissed.


                                             2
H.W., born in May 2012, and Mother’s children from a prior relationship, James R. and
Isaiah R.3 At the time the family came to the attention of the Department of Children and
Family Services (the Department) in late 2011, the parents had been in an “on and off”
relationship for about 10 years, but had never married.
       In November 2011, the Department received a report alleging physical abuse,
emotional abuse, and general neglect of James and Isaiah. The referral alleged that
Father had kicked Mother in her stomach while she was pregnant (with H.W.); that
Father disciplined Isaiah by picking him up by his ears; and that Father gave James a
black eye.
       Although the children denied witnessing Father kicking Mother, they told the
Department that the parents did push each other and fought. Both Mother and Father
denied any instances of domestic violence. Nonetheless, Father conceded he had
disciplined Isaiah in the manner reported. Father also admitted he smoked marijuana
daily and according to his parole agent, Father also abused methamphetamine. The
investigation further revealed the children were left in Father’s care every night when
Mother went to work. The Department decided to hold a team decision-making meeting
(TDM) with the family. In the meantime, Father agreed to move out of the home, and
Mother agreed to make arrangements for childcare of the children while she was at work.
       At the TDM, in November 2011, it was decided that a Voluntary Family
Maintenance Contract (VFM) would be created for the family. At the time, Mother
indicated that she no longer wanted to be in a relationship with Father and would seek a
restraining order. Mother reported that Father had moved out of the home but still visited
often because she was pregnant with his child. The Department informed Mother that if
she allowed Father to babysit or be alone with her children, the Department would


3
       James (born in 2003) and Isaiah (born in 2006) are not parties to the appeal.
Neither are their respective fathers. Isaiah was never removed from the care of his father,
G.M., and on March 13, 2013, jurisdiction was terminated in Isaiah’s matter after the
juvenile court awarded G.M. sole physical custody and joint legal custody of Isaiah.
James’s Father, E.B., has never been located.

                                             3
remove them from her custody. Mother signed a case plan, agreeing to complete
individual counseling and address domestic violence programs; Father did not participate
in the plan, but was warned that his child could be detained from him at birth.
       In January 2012, Father enrolled in an inpatient drug treatment program, but
shortly thereafter he tested positive for drugs and left the program. In February 2012,
Father moved back in with the family, and agreed to the case plan including drug testing,
and domestic violence counseling. Mother claimed that Father was never left alone with
the children.
       Father tested positive for drugs on a number of occasions and failed to comply
with other plan requirements. Mother reported that Father would live with her on and
off, and that he only used drugs while living with other people. In May 2012, the
Department informed Mother that Father’s failure to comply with the plan placed the
children at risk.
       H.W. was born in late May 2012. An unannounced visit to the family home
shortly after H.W.’s birth revealed that Father was still residing there. Mother stated she
remembered agreeing Father would not be alone with her sons, but Mother claimed that
her family was not able to help her and that Father was her only childcare support.
Another TDM was held. Father agreed to drug test, but refused to participate in a drug
treatment program.
       B.       Dependency Proceedings
       Section 300 Petition and Detention Proceedings. On June 7, 2012, the
Department filed a petition under section 300, subdivisions (a), (b) and (j) with respect to
the children. The petition alleged, in part, that Father physically abused Isaiah and
James, and that Mother failed to protect them from that abuse; Father and Mother
engaged in a physical altercation; and Father abused drugs, Mother was aware of Father’s
drug use, and allowed Father access to the children. The court ordered that the condition
of H.W.’s release to her parents was that Father comply with the drug court program,
submit to weekly random testing, and use no corporal punishment. The court further



                                             4
ordered that Father was to immediately move out of the home if he tested positive for
drugs, missed a drug test, or used corporal punishment.
       Shortly thereafter, Father tested positive for both marijuana and cocaine, and the
Department requested that Father move out of the home. On June 11, 2012, the
Department filed an ex parte application pursuant to section 385, recommending that the
juvenile court detain H.W. from Father and release her to her Mother. The court granted
the application.
       Jurisdiction and Disposition Proceedings. The jurisdiction and disposition
report revealed that the parents pushed each other during an argument; that Father used
corporal punishment on the boys, and yelled at Mother. During another fight Father
threw a stroller in the street. The reports also revealed that Father was not complying
with his substance abuse program and had tested positive for drugs.
       On September 12, 2012, the juvenile court sustained an amended petition and
found the children to be described by section 300.4 James, Isaiah and H.W. were


4
       The sustained petition states:

“[Amended (a-1), (b-1), (j-1)]: On 11/03/11, the children, [James], [Isaiah] and [H.W.]’s
[mother’s] male companion, . . . , father of the child [H.W.], inappropriately physically
disciplined the child Isaiah by grabbing and pulling the child’s ear, resulting in the [child]
sustaining swelling, redness and an abrasion to that ear. The child’s mother knew of the
inappropriate physical discipline, in that [Father] did hit the child on prior occasions, but
did not take effective action to protect the child. The child is afraid of [Father]. Such
inappropriate physical discipline and mother’s ineffective protection of the child place
the child Isaiah and his siblings James and [H.W.] at risk of physical and emotional harm
and damage.

“[Amended (b-3)]: The children [James], [Isaiah] and [H.W.]’s [mother’s] male
companion, . . . , father of the child [H.W.] has a history of and is a current user of
methamphetamine, marijuana and cocaine, having had [ ] positive toxicology results for
drugs on at least four occasions since May 24, 2011. Mother was aware of [Father’s]
drug use but allowed him to have unlimited access to the children. Such past and current
drug abuse by [Father.], and mother’s failure to protect the children place the children at
risk of harm.”


                                              5
declared dependents of the juvenile court. James and H.W. remained in Mother’s care,
but were removed from their respective fathers’ care. Reunification services were
ordered for Father and family maintenance services were ordered for Mother. Father was
ordered to have monitored visitation with H.W., was not allowed to visit H.W. in the
home, and Mother was not allowed to monitor the visit. Mother had enrolled in a
domestic violence program and attended weekly group sessions.
       Section 387 Petition. On October 12, 2012, the Department filed a section 387
petition seeking to detain the children from Mother. The Department reported that it had
discovered that Father continued to reside in the family home and that Mother had
allowed him access to the children. Although Mother denied the claim, she consented to
the removal of the children. James disclosed to the Department that Father struck him on
the face with his hand and that Father could not control his anger.
       Isaiah was released to his father. James and H.W. were placed with an extended
family member, who indicated that she could not care for H.W. on a long term basis. The
Department searched for homes that could accommodate both James and H.W. The
dependency court ordered the children detained from Mother and she was ordered to have
monitored visitation with the children.
       In the Jurisdiction/Disposition Report for the section 387 petition filed December
12, 2012, the Department reported that both James and Isaiah stated they were exposed to
Father’s drug use in the home and that they were also “coached” to lie about the fact that
Father was still residing in the home. James also reported that Father had physically
abused him and his brother and that Mother witnessed some of the abuse.
       James remained placed with the extended family member, and H.W. had been
re-placed to a foster home. The Department reported that Mother had a good relationship
with the children’s caregivers and was visiting each child weekly.
       In its interim review report filed February 11, 2013, the Department reported that
Mother had completed a parenting program with perfect attendance and was still
attending a domestic violence program. Mother had also been placed on a “waitlist” for
individual counseling.


                                             6
       Both children were doing well in their respective placements. H.W.’s foster
mother reported the parents visited consistently and sometimes visited together but that
Father acted “weird” on occasions. The foster mother indicated that in her view, Mother
enabled Father’s negative behaviors during the visits. Father’s drug dependency
continued, and he dropped out of his drug treatment program. Mother informed the
Department that she and Father planned to get married within a few weeks “despite
[Father’s] severe drug addiction.”
       At the adjudication hearing on February 11, 2013, the juvenile court sustained the
section 387 petition, and ordered the children removed from Mother. Mother was
ordered to receive family reunification services.
       Reunification Period. In a review report filed March 13, 2013, the Department
expressed concerns that Mother could not protect her children, because she remained in
denial about the severity of Father’s drug addiction and made excuses for his behavior.
       The children remained in their placements. The foster mother reported Mother
and Father would only visit for one hour and then say the baby was tired. The foster
mother also reported that Father was harassing her and that she no longer wanted to serve
as the monitor for the parents’ visits with H.W.
       In March 2013, Mother called the police to report that Father had physically
attacked her. In May 2013, the court terminated Father’s reunification services.
       An August 2013 review report disclosed Mother had completed her domestic
violence program and was enrolled in individual counseling, but continued to reside with
Father. The Department stopped allowing the parents to visit the children at the same
time. Thereafter, Mother visited H.W. and James together and the Department
supervised the visits. The Department reported the parents continued to be engaged in an
unhealthy relationship with chronic tension between them. The Department concluded
Mother was in partial compliance with her case plan. In the Department’s view, Mother
had not shown she could appropriately protect her children as she continued to reside
with Father, who had not addressed the issues that were the subject of the dependency
proceedings.


                                             7
       In the fall of 2013, the children continued to do well in their placements. Both
James’s and H.W.’s respective caregivers were willing to adopt if Mother did not reunify
with them. The Department reported that in October 2013, Mother had asked for
assistance in seeking a restraining order against Father. Father was served with
paperwork concerning the restraining order during a visit with H.W. Mother reported to
the Department that she was attempting to move so that Father would not know her home
location. Mother was having one monitored visit a week with James and H.W. at a park
for two hours, and a second visit with each child separately. During visitation with
James, Mother told him that she left Father. James stated he would live a “normal life”
with Mother but only if Father was no longer in their lives.
       Mother obtained a restraining order against Father in January 2014, and she found
a new residence, which appeared to be clean and free of safety hazards. The maternal
grandmother lived in the same complex as Mother and would be able to watch James and
H.W. when Mother worked at night.
       Mother reported that she had been separated from Father since October 2013
because of the domestic violence incident that occurred that month. Father was homeless
and he occasionally stayed with his family. Father was arrested in March 2014.
Nonetheless, in the Department’s view, Mother’s priority had been Father rather than her
children. In a December 11, 2013 report, the Department expressed concerns that Mother
had a history of reconciling with Father. The Department recommended Mother’s
reunification service be terminated at the next status review hearing.
       At the contested status review hearing on March 5, 2014, Mother testified. After
the conclusion of testimony and argument, the juvenile court terminated Mother’s
reunification services and scheduled a section 366.26 hearing.
       Mother’s Section 388 Petition. On June 30, 2014, Mother filed a section 388
petition requesting six additional months of family reunification services. In the
“changed circumstances” portion, Mother wrote that she continued participating in
services and had completed 45 domestic violence group therapy sessions and 29
individual counseling sessions. Mother stated the order would be in the children’s best


                                             8
interest so they “would continue to have a relationship with their biological mother.”
Mother supported her petition with a letter from her domestic violence program counselor
who described Mother’s consistent participation in the domestic violence group and
individual counselling. The counselor wrote that Mother had exceeded the required
number of recommended sessions in both group and individual counseling. The
counselor described Mother’s insight into issues related to her own traumatic upbringing
which caused Mother to remain in an abusive relationship with Father. The letter also
described the changes that Mother made to improve her life upon her realization of the
codependency issues. The letter noted Mother’s efforts to separate from Father,
including obtaining a restraining order against him. The letter indicated that Mother had
returned to the domestic violence group in March 2014 and had resumed individual
counseling in April 2014.
       On July 2, 2014, the juvenile court set Mother’s section 388 petition for a hearing
on September 16, 2014, and ordered the Department to prepare a report to address
Mother’s petition.
       In its July 2, 2014 status review report, the Department reported that James
continued to like his placement and wanted to live with his caregiver. James reported he
liked to visit his Mother and play with H.W., but would only live with her if she had
changed. H.W. appeared to be happy in her placement, and had a “healthy bond” with
her caregiver. Both children’s caregivers remained willing to adopt them. In the
Department’s view, it was likely Mother and Father would reconcile when he was
released from incarceration.
       Mother continued to visit both children together every Tuesday at a local park and
visited H.W. an additional day of the week. Mother never missed a visit and began
calling H.W. in between the visits. According to the Department’s visitation monitor, the
visitations went well. H.W. was excited to see Mother and her brother James at the
beginning of the visit—she laughed and smiled. Mother brought restaurant food for half
of the visits and home-cooked meals for the other half of the visits. Mother fed H.W.,
and they ate together. Mother carried H.W. around and engaged with the toddler. After


                                             9
they ate, they all played well together. Mother kissed H.W. goodbye and strapped her
into her car seat at the end of the visit.
       The record does not contain any indication that the Department prepared a written
response to Mother’s section 388 petition; however the Department’s section 366.26
report contains H.W.’s foster mother’s perspective of the situation. According to the
foster Mother, H.W. only called Mother “mom” once; she referred to the foster mother as
“mom” and Mother by her first name. The foster mother stated that Mother had only
recently begun buying clothes for the child and calling in between visits. Mother also
kept all of the toys and other items she purchased for the toddler because she was setting
up a room for the child in Mother’s home. The foster mother claimed that H.W. did not
want to attend visits with Mother—she cried and refused to leave the caregiver. The
caregiver believed that Mother did not change the toddler’s diapers during the two-hour
visits, though Mother claims she did. The caregiver did not believe Mother watched the
child closely during the visits. The foster mother opined the child was attached to her
foster parents and well-adjusted emotionally in their home. In the foster parent’s view,
the toddler would “suffer” if separated from them. The foster mother admitted, however,
that H.W. had a relationship with Mother, but that it is “not that strong.” The foster
mother believed that in a home environment different from her home, H.W.’s “wellbeing
would regress.” H.W.’s foster parents were committed to adopting H.W. and were not
interested in a post-adoption contact agreement.
       Section 388 and Section 366.26 Hearings. The hearing on Mother’s section 388
petition and the section 366.26 termination hearing were scheduled for September 16,
2014. At the outset of the proceeding, the dependency court stated that it had received a
section 388 petition from Father filed that day, in which he requested additional family
reunification services. The juvenile court summarily denied the petition, concluding
Father had not shown a change of circumstances or that the modification would serve
H.W.’s best interest.
       The court then considered Mother’s section 388 petition and began to announce
the court’s ruling on the petition. Mother’s counsel interrupted the court and asked for an


                                             10
opportunity to present an argument. The court initially refused, and then eventually
allowed Mother’s counsel to make a record. Mother’s counsel urged the court to grant
Mother’s petition for six additional months of reunification services for both James and
H.W. The children’s lawyer joined in the request with respect to James, but “submitted”
with respect to H.W. expressing the view that the “best interest prong” of the section 388
test had not been met as to H.W. The Department’s counsel reminded the court that the
proceeding was now at the 366.26 phase, and stated the Department was opposed to the
petition. The Department’s argument focused on the section 366.26 elements: “these two
children appear to be very differently situated. [H.W.] has not been in the parents’ care.
They could not possibly, I feel, make a substantial [366].26 argument for any sort of
exception. They don’t stand in a parental role, and I don’t see that there’s any way the
court can find a changed circumstance or best interest as to [H.W.].”
       The court then proceeded to rule on the petition. With respect to James, the court
found that Mother had demonstrated a sufficient change of circumstances and that it
would be in the minor’s best interest to provide Mother with six more months of
reunification with him, including counseling, therapy and increased visitation. With
respect to H.W., the court ruled: “As I’ve indicated, [H.W.] does not come and rise to the
level of minor’s best interest on the two prong test under 388, so the 388 as to [H.W.] is
denied.”
       The court then immediately turned to the section 366.26 proceeding. Mother
objected to the termination of her parental rights as to H.W., and asserted that she met the
parental relationship exception to the termination of parental rights under section 366.26,
subdivision (c)(1)(B)(i), and the sibling relationship exceptions. The court found that the
exceptions did not apply and terminated parental rights to H.W.
       Both Mother and Father filed appeals.
                                      DISCUSSION
       On appeal, Mother argues the juvenile court abused its discretion in denying her
section 388 petition and thereafter, erred in ordering the termination of her parental rights
over H.W. We agree.


                                             11
       Under the 14th Amendment, a parent has a liberty interest in the care, custody and
management of his or her children. (In re Sade C. (1996) 13 Cal.4th 952, 987.)
Likewise, a child has a liberty interest to live in a home with his or her parents, if
possible, or at least in a home that is stable. Prolonged uncertainty over whether a child
is to remain in his current home is detrimental to a child’s development. (Id. at pp. 988–
989.) For this reason, after reunification services have been terminated, the child’s
interest in a stable and permanent placement is paramount and reunification is no longer
the guiding principle. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
       Nonetheless, section 388 permits the juvenile court, “upon grounds of change of
circumstance or new evidence . . . to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court,” including prior orders
terminating reunification services. (§ 388, subd. (a).) The statute allows the modification
of a prior order only when the petitioner establishes by a preponderance of the evidence
that (1) changed circumstances or new evidence exists; and (2) the proposed modification
would promote the best interests of the child. (In re L.S. (2014) 230 Cal.App.4th 1183,
1193; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th
398, 415; Cal. Rules of Court, rule 5.570(e).) The section 388 modification procedure is
an “‘escape mechanism’ when parents complete a reformation in the short, final period
after the termination of reunifications services but before the actual termination of
parental rights,” which is “vital to the constitutionality of our dependency scheme as a
whole, and the termination statute, section 366.26, in particular.” (In re Kimberly F.
(1997) 56 Cal.App.4th 519, 528; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
       An appellate court reviews the juvenile court’s decision concerning a section 388
petition for abuse of discretion, and it is rare that the denial of a petition under section
388 merits reversal. (In re Kimberly F., supra, 56 Cal.App.4th at p. 522; In re Stephanie
M., supra, 7 Cal.4th at p. 317.) We do not inquire whether substantial evidence would
have supported a different order, nor do we reweigh the evidence and substitute our
judgment for that of the juvenile court. (Ibid.) At the outset, however, we must
determine whether the juvenile court applied the correct legal standard to the issue in


                                              12
exercising its discretion, which is a question of law for this court. “The scope of
discretion always resides in the particular law being applied; 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.” (Choice-In-Education League v. Los Angeles Unified
School Dist. (1993) 17 Cal.App.4th 415, 422.)
       A.     Changed Circumstances
       A parent seeking relief under section 388 “must show changed, not changing,
circumstances. [Citation.] The change of circumstances or new evidence ‘must be of
such significant nature that it requires a setting aside or modification of the challenged
prior order.’ [Citation.]” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
       In this case, the only reasonable inference from the evidence is that Mother
demonstrated changed circumstances. She had ended her relationship with the Father and
had been separated from him for almost a year by the time of the hearing on the section
388 petition. Although the Department speculated Mother would reunite with Father
when Father was released from incarceration, there is nothing in the record to support the
Department’s conjecture. Mother had already broken off their relationship and moved to
an address so that Father could not locate her. In the fall of 2013, she served Father with
restraining order documents and thereafter, obtained a restraining order against him that
will remain in effect until 2017. Mother had taken all of these actions prior to Father’s
most recent arrest. In addition, there was no evidence in the record to indicate that in the
period between the termination of reunification services and the hearing on the petition
that Mother and Father had resumed their relationship or had any plans to do so.
       Mother also had completed a domestic violence program and had complied with
every aspect of her case plan. At the time the court terminated her reunification services,
Mother rejoined the domestic violence group sessions and resumed individual
counselling. By the fall of 2014, Mother had completed more than the required number
of domestic violence group sessions and individual counseling sessions and had
developed insight into her behaviors which had caused her to be involved in abusive
relationships. She had a clean and safe home, steady employment and support from the


                                             13
maternal grandmother who lived in the same complex and was available to assist Mother
with childcare. In short, the changes that Mother had begun prior to the termination of
her reunification services had, by the time of the hearing on the section 388 petition,
taken hold.
       In reaching the conclusion that Mother met her burden to prove changed
circumstances, we also find it compelling that the court found “changed circumstances”
with respect to Mother’s 388 petition seeking reinstatement of reunification services with
James. In this case, the circumstances that gave rise to dependency proceedings
concerned the Father’s addictive behaviors and his abusive treatment of family members.
Other than the allegation that Mother did not protect her children from Father’s abuse, the
section 300 petition did not contain specific allegations concerning Mother’s individual
relationships with the children or her conduct towards them. The requisite “change”
relevant in the section 388 petition focused on the Mother’s efforts to address those case
issues. Thus, the court’s conclusion that Mother had demonstrated changed
circumstances sufficient to support her section 388 request with respect to James, should
also pertain to her request with respect to H.W. Indeed, the dependency court appeared
to reach that conclusion as well because in denying the section 388 petition with respect
to H.W. the court only articulated that Mother’s request did not meet the “best interest
prong,” of section 388; the court did not find that Mother had failed to demonstrate a
change of circumstance.
       B. Best Interest of H.W.
       Of course, “‘[i]t is not enough for a parent to show just a genuine change of
circumstances under the statute. The parent must show that the undoing of the prior order
would be in the best interests of the child. [Citation.]’” (In re S.J. (2008) 167
Cal.App.4th 953, 960.) Determining whether granting a section 388 petition and
modifying a prior order are in a child’s best interest “calls for a case-by-case analysis, not
a mechanical rule.” (In re Justice P. (2004) 123 Cal.App.4th 181, 191; In re Kimberly F.,
supra, 56 Cal.App.4th at p. 530 [“best interests is a complex idea” that requires
consideration of a number of factors].) Although the focus in a dependency proceeding


                                             14
after termination of reunification services shifts from the parent’s custodial interest to the
child’s need for permanency and stability (In re Stephanie M., supra, 7 Cal.4th at p. 317;
In re Marilyn H., supra, 5 Cal.4th at p. 309), permanence and stability cannot be the sole
factors considered in ruling on a parent’s section 388 petition because denial of the
petition would always further those goals.
       The child’s bond with the foster parents as compared to the party seeking
modification, the child’s emotional state, the presumption favoring natural parents and
the benefit to the child of establishing or maintaining a relationship with siblings must
also be evaluated. (See In re Stephanie M., supra, 7 Cal.4th at p. 325 [juvenile court
properly weighed factors to determine child’s best interest; “essence of the juvenile
court’s ruling was that the child was fragile, that she had a strong healthy bond with the
foster mother, and essentially no bond with the grandmother despite the opportunities that
had been available to the grandmother to create such a bond”]; In re Justice P., supra,
123 Cal.App.4th at p. 192 [in determining whether evidentiary hearing was warranted on
section 388 petition, juvenile court considered presumption favoring natural parents and
interest in continuing relationship among siblings]; cf. In re Kimberly F., supra, 56
Cal.App.4th at pp. 529-530 [simple comparison between socioeconomic status of natural
parents and caretakers “ignores all familial attachments and bonds between father,
mother, sister and brother, and totally devalues any interest of the child in preserving an
existing family unit, no matter how, in modern parlance, ‘dysfunctional’”; italics
omitted].) Also relevant, are the “seriousness of the problem which led to the
dependency, and the reason for any continuation of that problem” and “the degree to
which the problem may be easily removed or ameliorated, and the degree to which it has
been.” (Id. at p. 532.)5


5
        Case law, post Kimberly F., has distilled the analysis of “best interest” into three
factors: (1) the seriousness of the problem leading to dependency jurisdiction; (2) the
degree to which that problem has been resolved, and why it was not resolved sooner; and
(3) the relative strength of the bonds between the child and the parent and the child and
the caretakers. (See In re Jacob P. (2007) 157 Cal.App.4th 819, 832 [listing factors for

                                              15
       The court’s denial of the 388 petition with respect to H.W. based on a conclusion
that Mother had not satisfied the “best interest” prong of section 388 is troublesome in
several respects. First, based on the record before this court, it is unclear which of the
legal factors the dependency court considered, if any. We cannot accord deference to the
exercise of a trial court’s discretion unless it appears that court exercised its discretion
and applied the correct legal standard in doing so. Here, the court gave no indication of
how it reached its decision that additional services would not be in the best interest of
H.W. The court summarily announced its ruling on the petition, providing Mother’s
lawyer a brief opportunity to “make a record” only after counsel reminded the court that
the matter was scheduled for a hearing. The court did not explain or amplify the reasons
it granted the petition for reunification services as to James, but denied it with respect to
H.W. The failure to articulate a rationale, coupled with the Department’s emphasis on
the section 366.26 legal standards during oral argument, raises doubts as to whether the
court applied the correct legal standard. (See In re Hashem H. (1996) 45 Cal.App.4th
1791, 1801 [Evidence and arguments presented in a section 366.26 proceeding are not a
substitute for a hearing on appellant’s section 388 petitions].)
       Nevertheless, the court’s failure to expressly identify the legal reasons and the
evidence it relied upon would not necessarily warrant reversal, if the basis of the court’s
decision can be inferred from the evidence in the record. Here the second cause for
concern is that considering the appropriate factors, the record does not support the court’s
decision to deny the petition. Analyzing the Kimberly F. factors in this case, the only
reasonable inference from the evidence in the record before the dependency court is that
additional reunification services would be in H.W.’s best interest.
       First, some conditions that lead to dependency jurisdiction are more serious than
others. For example, in In re Kimberly F., supra, 56 Cal.App.4th at page 521, the court
held that dependency jurisdiction based on an unsanitary home was not as serious as


evaluating section 388], citing In re Kimberly F., supra, 56 Cal.App.4th at p. 532; In re
D.R. (2011) 193 Cal.App.4th 1494, 1512 [listing factors].) These are often referred to as
the “Kimberly F. factors.” (See In re J.C. (2014) 226 Cal.App.4th 503, 527.)

                                              16
sexual abuse, physical abuse or illegal drug use. In this case, although domestic violence
committed by Father and the Father’s substance abuse problems were certainly serious
problems, Mother (and James and Isaiah) were the victims; Mother was not the
perpetrator of the violence which led to dependency jurisdiction over H.W. As best we
can tell, the last reported incident of domestic violence between Mother and Father
occurred in March 2013, a year before the reunification services were terminated. Under
the unique circumstances of this case, the domestic violence which led to dependency
jurisdiction over H.W. was less serious than if Mother had perpetrated the abuse or if
H.W. had been actually harmed.
       Second, by the time of the section 388 petition hearing in September 2014, there is
no dispute that Mother's issues with recognizing and protecting herself and her children
from domestic violence had been resolved. As described above with respect to the
changed circumstances, Mother was no longer involved with Father, and had finally
broken off her relationship with him in the fall of 2013. Mother had completed all of the
court-ordered domestic violence and individual counseling programs, participating in
sessions above and beyond those required by her case plan. In fact, the juvenile court
was sufficiently confident that domestic violence was no longer an issue and that Mother
had finally separated from Father such that it granted the section 388 petition granting
Mother's additional reunification services as to James.
       With respect to the time it took Mother to resolve her domestic violence issues, the
Department blamed Mother’s failure to do so sooner on Mother’s inability to end her
relationship with Father, notwithstanding her knowing that Father had failed to address
his substance abuse or case plan issues. The Department raises a serious concern. The
evidence is undisputed that Mother did not fully separate herself from Father until her
children were removed from her custody. Indeed, from the time the Department became
aware of the family in late 2011 until the jurisdiction/disposition proceedings in February
2013, Mother and Father had continued to engage in a pattern of separating and then
reuniting as they had done for the prior 10 years. In addition, even after H.W. was
removed from Father, and the Department directed Mother not to provide Father access


                                            17
to the children, Mother continued to allow Father into the family home. However, within
six months of the children’s removal from Mother, she was finally able to completely
break off her relationship from Father. By the 12-month review hearing Mother had
obtained a restraining order, and moved to a different location. As of the hearing on the
section 388 petition, she had not been in contact with Father for almost a year. On this
record, it is unfair to say that Mother did not address the problem of domestic violence
that led to dependency jurisdiction over H.W. and James.
       The third factor is the relative strength of the bonds between the child and the
caretaker and the child and the parent. There is no question that as of the 388 hearing, the
foster parents had done an excellent job caring for H.W. The child had thrived in almost
two years she had lived with them, and they wanted to adopt her. Nonetheless, the child
also had a bond with Mother and with James. According to the Department’s visitation
monitor, H.W. was attached to Mother, who was loving and attentive to the children
during the twice weekly visits—visits that Mother never missed. Even the foster mother,
who described the Mother’s caretaking skills in less than complementary terms, admitted
that Mother and H.W. were attached. The bond between the foster mother and the child
was likely stronger than the bond between Mother and H.W. This result could be
expected, of course, given the nature of the placement – the child’s young age, the length
of time she had been in the foster parent’s home, and the fact that the foster family
provided for H.W.’s daily needs. It appears the Department recommendation to
terminate parental rights was driven by the Department’s desire to promote the adoption
of H.W. by the foster family. In the Department’s reports prepared during the
proceedings, especially those submitted just prior to the termination of Mother’s
reunification services, the Department does not provide substantiated evidence of
ongoing domestic violence involving Mother, of her failure to address her issues which
led to the dependency proceedings or to comply with the case plan. Instead the
Department emphasized the bond between H.W. and her foster family, the fitness of that
placement and the foster parent’s wishes to adopt the child.



                                             18
       If the success of the relationship between the child and the foster parents and
benefits provided to H.W. in the foster home in comparison with that offered by Mother’s
were the only matters the court was required to consider in assessing the merits of a
section 388 petition, then we might agree with the dependency court’s decision in this
case. However, the relative bonds between the child and her Mother and H.W. and the
foster family and the comparison of the households are not the only matters at issue, and
they certainly are not dispositive factors. As the court in Kimberly F. observed “the bond
to the caretaker cannot be dispositive . . . lest it create its own self-fulfilling prophecy.”
(Kimberly F., supra, 56 Cal.App.4th at p. 531; see also In re Jasmon O., supra, 8 Cal.4th
at p. 418 [“the existence of a successful relationship between a foster child and foster
parent cannot be the sole basis for terminating parental rights”].) Our Supreme Court has
cautioned against focusing solely on the suitability of the foster care placement. “[A]s a
matter of stare decisis, to interpret ‘best interests’ in terms of a simple comparison
between two households is to contravene the role of section 388 as explained by the
Marilyn H. court. Due process, said our high court, was satisfied in Marilyn H., even
against the claim that changed circumstances justified reunification, precisely because of
the escape mechanism provided by section 388. . . . Clearly – unless the Marilyn H. court
was just wasting ink and the existence of section 388 is only a sham to provide formal
window dressing for a statutory scheme which is dead set against parental reunification
after an unsuccessful 12 or 18-month review – the best interests standard cannot be a
simplistic comparison between the natural parent’s and the caretakers’ households.”
(Kimberly F., supra, 56 Cal.App.4th at p. 530, citing In re Marilyn H., supra, 5 Cal.4th at
p. 309; italics omitted.)
       Here, the Mother’s and H.W.’s relationship, and the other Kimberly F. factors –
the seriousness of the problem and its resolution – militate in favor of additional
reunification services for Mother. The presumption favoring natural parents and the
benefit to H.W. of maintaining her bond to James also supported Mother’s request for six
months of services. (In re Daijah T. (2000) 83 Cal.App.4th 666, 674-675). Although
each individual factor may not be enough to warrant additional reunification services, the


                                               19
only reasonable inference from all of this evidence when considered together is that
additional reunification services would be in H.W.’s best interests. Thus, we conclude
the court erred in denying Mother’s section 388 petition with respect to H.W.
       The order denying Mother’s section 388 petition must be reversed; and because
we reverse the order denying the section 388 petition, the order terminating parental
rights must also be reversed. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1508.)


                                     DISPOSITION


       The orders denying Mother’s petition for modification and terminating her
parental rights are reversed, and the matter is remanded to the juvenile dependency court.
The court is directed to enter a new order granting Mother six months of reunification
services unless the Department demonstrates based on new evidence of conditions and
circumstances that arose after the denial of the section 388 petition on September 16,
2014, that the additional six months of reunification services would be detrimental to
H.W. Father’s appeal is dismissed.




                                                               IWASAKI, J.*


We concur:




              PERLUSS, P. J.                                   ZELON, J.




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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