Filed 4/17/13 In re C.D. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re C.D., a Person Coming Under the                                B241284, B242492
Juvenile Court Law.

                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. CK75099)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

MICHELLE B.,

         Defendant and Appellant.



         APPEALS from orders of the Superior Court of the County of Los Angeles.
Jacqueline Lewis, Juvenile Court Referee. Reversed and vacated with directions.
                                                         ______
         Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
                                                         ______
       Michelle B. (Mother) appeals from the trial court’s orders denying her petitions
under Welfare and Institutions Code section 388 and terminating her parental rights as to
her son, C.D.1 We reverse and direct the trial court to grant Mother’s petition and return
C.D. to her custody.
                                     BACKGROUND
       Our opinion in a previous appeal summarized the relevant facts as follows:
“Ten-year-old J.H. and his half-brothers R.R., age 5, and C.D., age 11 months, came
to the attention of the Department of Children and Family Services (DCFS) in
October 2008 after J.H. went to his school nurse to obtain an ice pack for his swollen
arm. J.H. told the nurse that his mother’s boyfriend had given him a ‘“whoopin”’
the night before. The nurse observed bruises and swelling on J.H.’s arm and called
the DCFS.
       “That afternoon a social worker interviewed J.H. at school. The worker reported
that she observed red, raised linear welts on the child’s right arm and back and a dark
purple bruise on his upper right arm. She also observed linear scars on J.H.’s legs
which, he told her, were the result of ‘“whoopins”’ by the boyfriend with an ‘extension
cord.’ (Later in the interview, he clarified that the cord was a jump rope.) J.H. stated
that he received this punishment because he forgot to give C.D. his bottle and then lied
about it. J.H. told the worker that before the boyfriend moved into their home, his mother
would punish him by hitting him with a belt. Now, however, his mother and her
boyfriend usually punish him and his brother, R.R., by hitting them with the jump rope.
He said he never saw them hit C.D. J.H. also told the worker that it was not wrong for
his mother and the boyfriend to strike him with the rope and that ‘he was not scared to go
home.’
       “Later that day the worker interviewed the boyfriend and five-year-old R.R. at
their home. The boyfriend admitted striking J.H. with the jump rope the previous night
and showed the rope to the worker. She described it in her report as ‘about 6 inches long

1
       All subsequent statutory references are to the Welfare and Institutions Code.

                                             2
with a handle.’ She also reported the boyfriend ‘appeared bewildered’ when she
informed him that striking a child hard enough to leave marks and bruises constitutes
child abuse. R.R. confirmed that the boyfriend ‘“whooped [J.H.’s] butt”’ the previous
day for telling a lie. R.R. told the worker that the boyfriend had also hit him with the
jump rope the previous day because he forgot to bring home his homework.
       “The worker interviewed Mother at the DCFS office where the children had
been taken. According to the DCFS Detention Report, ‘Mother denied allegations of
physical abuse, although she confirmed that [J.H.] was struck the night before with the
plastic jump rope by her boyfriend.’ Mother told the worker that in Arkansas, where
she was from, physically disciplining a child was not considered ‘abuse’ and that she
had been disciplined with a switch when she was a child. Nevertheless, Mother told
the worker that ‘if her form of discipline is a problem, she is willing to try other means
of discipline for her children.’ Mother also stated she did not see any bruising on J.H.
that morning and that until the previous night the child had not had a ‘“whoopin”’ in over
a month.” (In re J.H. (Nov. 5, 2009, B213547) [nonpub. opn.].)
       “The DCFS filed a petition requesting that the three brothers be declared
dependent children of the court under Welfare and Institutions Code section 300,
subdivisions (a), (b), (g), and (j). At the detention hearing the court considered the
petition, the report summarized above and the arguments of counsel and found a prima
facie case for detaining the minors. The court placed C.D. with his father and placed J.H.
and R.R. with an extended family member. Mother was allowed only monitored
visitation with all three children.” (In re J.H. (Nov. 5, 2009, B213547) [nonpub. opn.],
fn. omitted.)
       In subsequent interviews before the jurisdiction and disposition hearing, Mother
provided proof that she had voluntarily enrolled and was attending counseling at a
Christian counseling center and that she and the boyfriend had voluntarily enrolled and
were attending a parenting class through the Long Beach School District. (In re J.H.
(Nov. 5, 2009, B213547) [nonpub. opn.].) “The boyfriend admitted hitting J.H. with a
piece of jump rope. He told the worker he didn’t know hitting a child with an object

                                              3
like a rope or a belt was unlawful in California. ‘Arkansas is different,’ he explained.
He admitted that he and Mother ‘made a mistake’ and stated that if the children are
returned home there would be no more physical discipline. He confirmed that he and
Mother were participating in a parenting class.
       “The DCFS report also summarized reports from the Long Beach Police
Department regarding the investigation of the incident that led J.H. to go to the school
nurse. The detective assigned to the case reported principally on his interview with the
boyfriend. According to the detective, the boyfriend stated he struck J.H. several times
with a ‘“piece of cord”’ but that he did not mean to cause J.H. physical injuries; he was
just trying to teach him a lesson. ‘The boyfriend began crying and stated that he was very
sorry for what he did. [He] stated that as a young child, he was disciplined that same way
and did not realize that it was wrong to do.’ The detective also wrote that the boyfriend
said he ‘would do anything to get the children back.’
       “In testifying at the combined adjudication and disposition hearings, Mother
admitted that three or four times in the past year she struck J.H. on his buttocks with a
plastic jump rope and a belt but she denied ‘caus[ing] injuries to the child.’ On direct
examination she also testified that as far as she knew the boyfriend did not strike J.H.
‘in the head, back, shoulder, arms, leg and hand with a plastic jump rope causing
injuries.’ On cross-examination she clarified that the boyfriend hit J.H. once with a
jump rope but did not cause him injury. Asked whether, if the children were returned
to her, she was ‘willing to stop using any type of physical discipline on them,’ Mother
answered, ‘Yes.’ Mother submitted a letter from her parenting class instructor, dated the
day before the disposition hearing, describing that Mother ‘is an active participant in my
class, she seems eager to learn, and to do anything possible to be a better parent.’ Mother
also submitted a letter, dated two days before the hearing, from her counseling program
stating that Mother ‘has recently completed four consecutive sessions and has shown a
positive progress.’




                                             4
       “The court adjudicated the three boys dependents of the court under section 300,
subdivisions (a), (b), (g) and (j). The court terminated jurisdiction over R.R. and C.D.,
placed them with their fathers and awarded the fathers sole physical and legal custody
of the children with weekly, monitored visitation for Mother. It retained jurisdiction
over J.H. and continued his placement with a family member. The court found by clear
and convincing evidence that despite the DCFS ‘making reasonable efforts to enable
the child’s safe return home,’ ‘[s]ubstantial danger exists to the physical health of
[the minor] . . . and there is no reasonable means to protect [the minor] without removal
from parent’s or guardian’s physical custody.’ The court ordered family reunification
services and appropriate conjoint counseling for Mother and J.H. It also ordered that
Mother complete a DCFS approved program of ‘parenting education, preferably a
52-week class, if the Department can identify one.’” (In re J.H. (Nov. 5, 2009, B213547)
[nonpub. opn.].)
       In an opinion filed November 5, 2009, we reversed the dispositional orders
removing the children from Mother’s home, terminating jurisdiction over R.R. and C.D.,
and awarding sole physical and legal custody to their fathers. We directed the trial
court to return the children to Mother’s home “unless circumstances occurring after
the dispositional orders warrant other remedies.” (In re J.H. (Nov. 5, 2009, B213547)
[nonpub. opn.].)
       On remand, the court reinstated jurisdiction over R.R. and C.D. but did not return
them to Mother’s home, because on December 25, 2009, Mother and the boyfriend
were involved in an altercation at the home of J.H.’s paternal aunt, where J.H. had been
placed. Witnesses gave conflicting accounts of the incident, in which Mother and the
boyfriend went to the paternal aunt’s home (unannounced and without permission,
according to the paternal aunt) to see J.H. When the paternal aunt told them that J.H.
was playing at a neighbor’s house, they headed toward that house but were confronted
by the paternal aunt’s 37-year-old son, who is a paraplegic and uses a wheelchair but
was at that time on parole following a felony conviction for assault with a firearm.
According to the paternal aunt, her son told Mother and the boyfriend “to stop harassing

                                              5
his mother and that they needed to leave.” The verbal confrontation escalated to a
physical one in which, according to at least one witness, Mother spit on and struck the
paternal aunt’s son, drawing blood. The paternal aunt’s son shot Mother’s boyfriend,
wounding him in the leg.
       Mother reported the incident to the police, and the paternal aunt reported it to
the DCFS. Upon investigating, the DCFS determined that the paternal aunt’s son, a
violent felon on parole, was living at the paternal aunt’s residence, making it “an
illegal placement” for J.H. The DCFS removed J.H. from the paternal aunt’s home,
placed him in foster care, and sought to modify his disposition order pursuant to
section 387.
       On February 2, 2010, the DCFS filed a section 342 petition with respect to all
three children, contending that the incident with the paternal aunt’s son endangered the
children’s physical and emotional health and safety and placed them at risk of physical
and emotional harm and damage.
       On November 1, 2010, the trial court sustained the petition. The court placed R.R.
in his father’s home under supervision of the DCFS, and the court ordered J.H. and C.D.
placed in the care of the DCFS, for suitable placement; J.H. was put in foster care,
and C.D. was placed with his adult sister. The court also ordered family reunification
services and monitored visits for Mother. In a subsequent order, the court terminated
jurisdiction as to R.R. and entered a family law order awarding his father sole physical
and legal custody. Mother appealed, and we affirmed the removal orders, the denial
of unmonitored visitation, and the termination of jurisdiction as to R.R. (In re J.H.
(Nov. 30, 2011, B228378, B230695) [nonpub. opn.].)




                                             6
       The court-ordered case plan directed Mother to participate in individual
counseling and DCFS-approved parenting and anger management programs.2 It also
directed the DCFS to provide referrals to the boyfriend for individual counseling and
anger management and parenting programs.
       The record reflects that as of March 27, 2010, Mother completed a 52-week
parenting program for child abusers. The instructor commented that Mother “has made
significant, substantial changes since enrolling in the program” and “has learned to take
time-outs and think before reacting.”
       On February 11, 2011, Mother and the boyfriend completed their DCFS-approved
anger management program.
       On March 16, 2011, the DCFS filed a section 388 petition requesting authorization
to liberalize Mother’s visitation to unmonitored or overnight visits for both J.H. and C.D.
The petition was based on the changed circumstances that “Mother has consistently
participated in individual counseling and anger management.” Accordingly, the DCFS
reasoned that “[i]f mother’s progress continues to be positive, the [DCFS’s]
recommendation will be for the children to return home at the next court hearing on
5/2/11. Unmonitored and/or overnight visits will facilitate the children’s return home.
This will also give mother the opportunity to demonstrate that she can appropriately
provide for the children.” The attached letter from the director of the anger management
program stated that Mother “is a very active participant in my class, she participates in
the discussions and is learning to deal with her issues regarding her anger. . . . I have
great confidence that she is on her way to having control over her past issues.” The letter
from Mother’s individual therapist was similarly supportive.




2
       We note that the record contains no evidence that either Mother or her boyfriend
ever struck any of the children in anger. The record also contains no evidence that either
Mother or her boyfriend ever suffered from an anger management problem before
Mother’s child was removed from her custody and placed in a home where a violent
felon on parole was residing.

                                              7
       No later than April 5, 2011, Mother was discharged from individual therapy
“because she met all treatment goals and was no longer in need of therapy.” We note
that the record reflects that the therapist was fully apprised of the various versions of the
altercation that took place on December 25, 2009. The court repeatedly ordered that all
sustained petitions and all DCFS reports be sent to the therapist. In addition, the therapist
stated that Mother herself provided the therapist with both a copy of the police report
and a copy of the detention report filed by the DCFS on January 5, 2010, and Mother
and the therapist “reviewed the information in both reports carefully.” The January 5
detention report described in detail the conflicting versions of the altercation.
       In a May 2, 2011, interim review report in support of the March 16, 2011, petition
under section 388, the DCFS observed that Mother “is continuing to have appropriate,
individual, monitored contact with both [J.H. and C.D.].” The DCFS reiterated its
recommendation that it be granted discretion to liberalize Mother’s visitation to
unmonitored or overnight visits for both J.H. and C.D.
       On June 7, 2011, both Mother and the boyfriend completed their DCFS-approved
parenting program. The social worker reported that Mother stated that “she liked this
parenting class better than the previous one, explaining that it provided more tips on how
to praise your children for the good behavior as opposed to only reprimanding them for
the negative behavior. Mother showed [the social worker] the homework that she
completed for the class and [the social worker] observed that [Mother] seems to be
learning based on her answers on the homework.” Mother also informed the social
worker that the boyfriend was not living with Mother, and the social worker “observed
no adult male belongings” in Mother’s home; but Mother also told the social worker
that she planned to live with the boyfriend “someday,” because they intended to marry.
       On August 1 and 2, 2011, the court conducted a hearing on the section 388
petition that the DCFS had filed on March 16. In support of the DCFS’s petition,
Mother submitted a letter to the court in which she stated that she “no longer believe[s]”
that corporal punishment is a “suitable means of discipline.” She also described the
alternative methods of discipline and other parenting techniques that she has learned, and

                                              8
she informed the court that she was now working as a nurse with “special needs children”
and that, through her work, she had learned “a great deal of patience.” Mother’s therapist
testified at the hearing and was entirely supportive of the position advocated by DCFS
and Mother.
       The court granted the petition as to J.H., authorizing unmonitored visits for him,
but the court denied the petition as to C.D. The court’s minute order states that
Mother “is in partial compliance with the case plan.” (Mother had in fact completed
all court-ordered programs two months earlier.) The court also terminated Mother’s
reunification services because “we are [past] the 18-month date,” and the court set a
permanency planning hearing under section 366.26 for both J.H. and C.D. Mother
filed a writ petition seeking to overturn the order terminating reunification services,
but we denied the petition. (Michelle B. v. Superior Court (March 1, 2012, B235454)
[nonpub. opn.].)
       On November 29, 2011, at the initial section 366.26 hearing, Mother’s counsel
informed the court that R.R. was now living with Mother, because R.R.’s father, in
whose home R.R. had been placed, was in prison, and Mother had obtained custody
through the family law courts. The court continued the hearing.
       On February 10, 2012, Mother filed a petition under section 388, seeking return
of J.H. and C.D. to her care and custody. In support of her petition, she attached,
inter alia, documentation showing that she is a licensed vocational nurse, as well as a
copy of a performance evaluation from her job, showing that she scored the highest
possible rating in all 17 areas that were assessed. The court denied the petition without
a hearing as to C.D., but the court granted a hearing on the petition as to J.H.
       On March 29, 2012, Mother filed another petition under section 388, seeking
return of C.D. to her care and custody (her previous section 388 petition as to J.H. was
still pending). The court denied the petition without a hearing. Mother timely appealed.
       On May 21, 2012, Mother filed another petition under section 388, seeking return
of C.D. to her care and custody (her previous section 388 petition as to J.H. was still



                                              9
pending). On May 29, 2012, the court granted a hearing on the petition. The hearing
was originally calendared for June 7 but was later continued to June 25, 2012.
       In “last minute information for the court” dated June 22, 2012, the DCFS informed
the court that Mother “has complied with all Court ordered programs,” including anger
management, parenting, and individual counseling. The DCFS again noted that Mother
was “discharged from therapy because she met all treatment goals and was no longer in
need of therapy.” The DCFS further observed that “mother has continued to have
unmonitored overnight/weekend visits with her son, [J.H.],” those visits “have been
appropriate,” “[n]o problems have been reported by mother or [J.H.] with the visits,”
and J.H.’s foster father “has reported no behavioral problems with [J.H.] upon returning
from visits with his mother.” The DCFS also inspected Mother’s home and found it
to be “clean, neat and well kept,” raising “[n]o current safety issues or concerns.”
Accordingly, the DCFS recommended that J.H. be ordered placed in Mother’s home.
As to C.D., the DCFS felt it was “unable to make” the same recommendation, because
C.D. still had not had any unmonitored or overnight visits with Mother (which the
DCFS had requested in March 2011). Consequently, the DCFS again recommended
that the court grant the DCFS discretion to liberalize Mother’s visitation with C.D. to
unmonitored or overnight visits.
       On June 25, 2012, the court heard and ruled on the section 388 petitions as to
both J.H. and C.D. The court granted the petition as to J.H., returning him to Mother’s
custody under DCFS supervision. The court denied the section 388 petition as to C.D.
on the ground that “[t]here [has] been no change of circumstances.” The court then
proceeded to conduct the section 366.26 hearing as to C.D. The court found that C.D.
was adoptable, that there were no legal impediments to adoption, and that no exception
to adoption applied. The court terminated Mother’s parental rights as to C.D. and
ordered adoption as the permanent plan.
       Mother timely appealed from the court’s order of June 25, 2012. We consolidated
that appeal with Mother’s appeal from the denial of the section 388 petition she filed in
March 2012.

                                             10
                                       DISCUSSION
       Mother argues that the trial court abused its discretion by denying the section 388
petition she filed in May 2012. We agree.
       “Modification orders in juvenile dependency court are authorized by section 388.
Essentially, the statute requires a showing of a change of circumstances and that
modification based on that change would be in the ‘best interests’ of the minor children.”
(In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The most sustained reflection
on the nature and role of section 388 appears in our Supreme Court's decision in In re
Marilyn H. [(1993)] 5 Cal.4th 295. Essentially, Marilyn H. teaches us that section 388
really is an ‘escape mechanism’ when parents complete a reformation in the short, final
period after the termination of reunification services but before the actual termination of
parental rights. (See Marilyn H., supra, 5 Cal. 4th at p. 309.) As such, section 388 is
vital to the constitutionality of our dependency scheme as a whole, and the termination
statute, section 366.26, in particular. (See 5 Cal. 4th at p. 309.)” (In re Kimberly F.,
supra, 56 Cal.App.4th at p. 528.) We review the trial court’s ruling on a section 388
petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
       The trial court’s decision is unjustifiable. The children were removed in October
2008 because Mother and her boyfriend had used corporal punishment on J.H. and R.R.
In December 2009, Mother and her boyfriend were involved in some sort of violent
altercation with a 37-year-old wheelchair-bound man, who was also a paroled violent
felon residing at the home where one of Mother’s children had been placed, and who
ended up shooting the boyfriend. As to the corporal punishment issue, Mother and her
boyfriend explained that they were disciplining J.H. and R.R. in the same way that
Mother and her boyfriend had been disciplined as children in Arkansas. When informed
that their conduct was unlawful in California, they expressed remorse and pledged that
their conduct would not be repeated; the record contains no evidence that they have ever
wavered from that commitment. As to the altercation with the paroled violent felon, the
record contains no evidence that either Mother or her boyfriend has been involved in
any kind of inter-adult violence since then, or that any is likely to occur in the future.

                                              11
Both Mother and her boyfriend voluntarily entered a parenting program before any had
been ordered. Thereafter, Mother made consistent progress in all court-ordered programs
and actually completed all of them (with flying colors, according to documents in the
record) before reunification services were terminated. Her boyfriend likewise completed
anger management and parenting programs. Mother is now employed as a licensed
vocational nurse (she was unemployed for a period of time during the pendency of these
proceedings), works with disabled children and adults, and has received a glowing
performance evaluation. Her home is “clean, neat and well kept” and raises “[n]o
current safety issues or concerns.” R.R. has been living with Mother at least since
November 2011, without incident. J.H. had unmonitored visits with Mother beginning in
August 2011, also without incident, and has now been returned to her custody. The
DCFS itself was recommending unmonitored or overnight visits for C.D. five months
before reunification services were terminated, with the stated aim of returning C.D. to
Mother’s custody in May 2011. But to this day Mother has not been given the
opportunity for a single unmonitored visit with C.D., and now her parental rights have
been terminated.
       The existence of changed circumstances is not open to serious dispute—the trial
court itself found changed circumstances as to J.H. Between November 2010, when the
trial court entered its disposition order as to C.D. (which has remained unchanged), and
June 2012 (when the trial court denied Mother’s last petition under section 388), at least
the following changes had taken place: Mother timely completed all court-ordered
programs; her boyfriend timely completed parenting and anger management programs as
well; Mother secured employment and received an excellent performance evaluation;
Mother’s home was inspected and approved by the DCFS; R.R. was returned to Mother’s
custody and lived there for at least six months without incident; and J.H. received
unmonitored visits with Mother for nine months without incident.
       The remaining issue is C.D.’s best interests. The trial court apparently concluded
that returning C.D. to Mother’s custody would not be in C.D.’s best interests because of a
risk of abusive corporal punishment. The record contains no evidence to support that

                                            12
conclusion. In addition to completing all court-ordered programs, Mother has repeatedly
renounced the use of corporal punishment, both in writing and in sworn testimony before
the court. Her boyfriend has likewise stated that he will not use corporal punishment.
R.R. has been living with Mother at least since November 2011, and J.H. has had
unmonitored visits with her since August 2011. There is no evidence that any corporal
punishment has been used during that time. In sum, there is no evidence that returning
C.D. to Mother’s custody (particularly under DCFS supervision) would not be in C.D.’s
best interests.
         For all of the foregoing reasons, we conclude that the trial court abused its
discretion by denying Mother’s section 388 petition seeking the return of C.D. to her
custody. We sympathize, however, with the DCFS’s concern that an abrupt return might
be difficult for C.D. because he has had no unmonitored or overnight visits with Mother
since he was removed in October 2008. We therefore direct the trial court on remand to
authorize the DCFS to arrange a brief transitional period of unmonitored and overnight
visits for C.D. in preparation for his return to Mother’s custody at the earliest possible
date.3




3
       We note that when the DCFS first requested authorization to allow unmonitored
and overnight visits for C.D. on March 16, 2011, the DCFS anticipated that C.D. would
be returned to Mother’s custody just one and one-half months later, on May 2.

                                              13
                                       DISPOSITION
       The June 25, 2012, order denying Mother’s section 388 petition as to C.D. is
reversed, the order terminating her parental rights as to C.D. vacated, and the trial court is
directed to enter a new and different order granting Mother’s petition and returning C.D.
to her custody under DCFS supervision following, if necessary, a brief transitional period
of unmonitored and overnight visits. If the parties file a stipulation to immediate
issuance of the remittitur, then the clerk shall issue the remittitur forthwith. (Cal. Rules
of Court, rule 8.272(c)(1).)
       NOT TO BE PUBLISHED.




                                                  ROTHSCHILD, Acting P. J.
We concur:



              CHANEY, J.                          JOHNSON, J.




                                             14
