Filed 7/1/14 In re M.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re M.L. et al., Persons Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

JESSICA C., 

Defendant and Appellant.

 D065168

 (Super. Ct. No. J518395 A-C)

APPEAL from orders of the Superior Court of San Diego County, Elizabeth A. 

Riggs, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel and Patrice Plattner-Grainger, Deputy County Counsel, for Real Party in Interest 

San Diego County Health and Human Services Agency.

Brittany Murphy, under appointment by the Court of Appeal for Minors.
2

Jessica C. appeals orders of the juvenile court granting petitions under Welfare 

and Institutions Code1 section 388 placing her children with their father, A.L. Jessica 

contends the juvenile court abused its discretion in granting the petition because the 

children were doing well in her care and A.L. had "serious unresolved domestic violence 

issues." We affirm the orders. 

FACTUAL AND PROCEDURAL BACKGROUND2

Jessica and A.L. married in 2002. Their first son, M.L., was born in 2003 while 

they were living in Georgia. They separated in early 2004 and Jessica moved with M.L. 

to San Diego, where she had family. After his honorable discharge from the military, 

A.L. moved to Kern County. The couple had another son, M.C., together in 2005, but 

divorced in 2006, with joint legal and physical custody of the boys.

Between February 2004 and mid-2008, the family had a number of child welfare 

referrals, several of which were based on Jessica's allegations that A.L. had been violent 

with her and the children. None of the referrals resulted in conclusive findings and 

several were deemed to be unfounded.3 A.L. was never arrested or charged with any 

crimes arising from the underlying allegations. Jessica and A.L. had a third child, a 

daughter, in 2010.

From 2008 to 2011, Jessica moved with the children several times between San 

Diego and Los Angeles or Kern County, where A.L. was living. In March 2011, when 

she and the children were staying at the St. Vincent de Paul Village in San Diego, the San 

 

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

2 As can be seen from a comparison of the factual recitation that follows and the 

facts set forth in the opening brief, Jessica has failed to comply with a fundamental rule 

of appellate procedure requiring that the evidence be construed most favorably to the 

challenged order. (See generally Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) 

3 When later asked about the referrals, Jessica responded that she called in some of 

them herself after A.L. did not return the children to her at the agreed-upon time.
3

Diego County Health and Human Services Agency (the Agency) opened a voluntary 

services case for her, but closed the matter a few months later based on its inability to 

locate the family. At about the same time it closed the case, the Agency received a report 

from Jessica's sister, Carmen, that Jessica was unstable, had been physically aggressive 

with her, and was not getting the boys to school. 

In December 2011, when she and the children were in Lancaster, Jessica called a 

domestic violence shelter alleging that A.L. had assaulted her and M.L. when the family 

was shopping together.4 Jessica and the children moved into a Los Angeles shelter and 

the Los Angeles Department of Children and Family Services (DCFS) devised a safety 

plan for the family and filed dependency petitions for the children, seeking their removal 

from A.L.5

Jessica took the children and left the shelter without notifying DCFS, and the court 

issued an arrest warrant for her and protective custody warrants for the children. When 

DCFS discovered Jessica and the children had returned to San Diego and were living 

with Carmen and her husband, Jessica was arrested on the outstanding warrant and the 

children were placed in foster care. She was later released and moved back in with 

Carmen. 

In January 2012, the Los Angeles County Superior Court issued a restraining order 

against A.L. for Jessica's protection and, over DCFS's objection, ordered the children 

 

4 Jessica also alleged that four months earlier, A.L. had forcibly taken her and the 

children from San Diego to Lancaster and essentially held them prisoner in his home, but 

law enforcement refused to take any action after she reported it. A.L. denied Jessica's 

allegations, stating she asserted them after he declined to buy her a sweater she wanted.

5 The petitions alleged that the children were in need of the protection of the 

juvenile court because A.L. used inappropriate physical discipline and engaged in rough 

horseplay with the children, and the parents had a history of domestic violence. A.L. 

consistently denied physically abusing Jessica or the children. Most of the petition's 

allegations of physical abuse relating to the children were later dismissed.
4

placed with Jessica. Based on reports that Carmen had a criminal history and her 

husband had prior substantiated child protective service referrals, the court instructed 

DCFS to find a domestic violence shelter for Jessica and the children. 

In March 2012, the juvenile court in Los Angeles sustained the petitions, declared 

the children dependents and continued their placement with Jessica. It ordered domestic 

violence counseling, parent education, and individual counseling for Jessica; individual 

domestic violence counseling for A.L; and individual therapy for the boys. It also 

authorized supervised visitation between A.L. and the children. 

While Jessica and the children were in the domestic violence shelter, the boys 

were enrolled in school, which evaluated M.L. for an Individualized Education Program

(IEP).6 In April 2012, the dependency proceedings were transferred from Los Angeles to 

San Diego, over A.L.'s objection. Although A.L. was living in Mojave and employed 

full-time, he maintained regular supervised weekend visits with the children in San 

Diego. 

Meanwhile, Jessica continued to struggle to maintain stable housing.7 She 

voluntarily left the domestic violence shelter where she had been staying, and she and the 

children were asked to leave a second shelter after a week because of an incident between 

Jessica and another resident. The family lived in a third shelter for two weeks in late 

May 2012, but moved back in with Carmen on June 1. In early August 2012, Carmen, 

Jessica and the children moved to another home together, although Jessica frequently 

threatened to move out because of her ongoing disagreements with Carmen. Carmen also 

 

6 The IEP was ultimately released in April 2013; it indicated that M.L., then nine 

years old, had kindergarten or early first grade level reading and math skills, had severe 

delays in all areas of his adaptive living skills, and needed glasses. 

7 At one point, Jessica received homeless assistance funds, but she used them to stay 

at a hotel for $100 per night rather than for low income housing for her family. 
5

occasionally stated in front of the children that she would kick the family out of the 

home.

Because of the constant moving and providers' inability to reach her by telephone, 

Jessica was unable to effectively participate in most of the services offered to her, 

including a parenting program. In addition, her participation in individual and group 

therapy was inconsistent. Her individual therapist concluded in part that Jessica suffered 

from an adjustment disorder, mixed anxiety and disorganized thinking, was irresponsible 

and lacked insight. Based on Jessica's lack of progress in counseling, the therapist 

recommended that she undergo a psychological evaluation to determine whether she 

would be able to participate in treatment and protect the children. 

In contrast, A.L. had completed a parenting class and consistently participated in 

individual therapy sessions, with his therapist reporting that he was capable of 

functioning as a protective parent, with patience as one of his strengths. Through 

domestic violence counseling, A.L. realized that he had not always handled stressful 

situations well, and worked on learning how to respond to escalating circumstances. 

With the Agency's assistance, A.L. also maintained regular visitation with the children, 

during which he was very engaged and demonstrated "positive role modeling." The 

children were very well behaved during visits and the boys began to deny Jessica's 

allegations about historical domestic violence and physical abuse by A.L. 

At the family maintenance review hearing in October 2012, the court continued 

the children's placement with Jessica, but expressed concern about the impact her

frequent moves had on the boys' education and her ability to participate in services, and 

ordered her to submit to a psychological evaluation. At M.L.'s request, he visited with 

A.L. after the hearing was over. 
6

In March 2013, Jessica canceled authorized in-home parenting services because 

she and Carmen objected that the provider was asking too many personal questions. 

Based on Jessica's comments, the social worker was concerned about sending any other 

third party service providers into her home. Moreover, M.L.'s therapist reported Jessica 

had difficulty parenting M.L. and often engaged him in a power struggle that increased 

his "angry feelings and anger outbursts." The following month, A.L. began having 

unsupervised visits with the children.

A psychologist who evaluated Jessica in March 20138 concluded she suffered 

from a personality disorder that made her impulsive, suspicious, deceitful and 

irresponsible. The evaluator noted a high school psychological evaluation of Jessica

characterizing her as manipulative and "capable of distorting the truth . . . to suit her 

immediate needs," and stated his belief that Jessica had utilized services in the 

dependency proceedings only to the extent they met her needs; he questioned whether she 

would be able to work through her issues in therapy but suggested that psychotropic 

medications might improve her cognitive functioning and stabilize her affect. Based on 

the evaluation, the Agency recommended, and the court ordered, Jessica to submit to a 

psychiatric examination. 

Although Jessica's housing situation had finally begun to stabilize, she repeatedly 

expressed her intent to move again because of ongoing conflict with Carmen. Jessica 

reported feeling overwhelmed by the children and the family home was in total disarray,

with food, clothing, and bags of dirty laundry all over the floor. Jessica was unable to 

consistently get the boys to school, despite several reminders about the importance of 

doing so, which resulted in M.L. being absent from school on 17 days and tardy 30 times,

and M.C. being absent 14 days and tardy 28 times.

 

8 The evaluator noted that he had difficulty scheduling the evaluation because 

Jessica did not return his calls. 
7

In June 2013, Jessica got a job, but then promptly quit, and moved the family to a 

hotel after she had a physical altercation with Carmen. During the next two months, the 

social worker received a series of messages from Jessica and Carmen in which they each 

made accusations against the other.9 

In late July 2013, Jessica requested the social worker's assistance in getting 

housing for the family, although she stated she was going to ask the court to give A.L.

custody of the boys. Jessica also stopped taking the boys to therapy, and missed her own 

therapy and domestic violence counseling sessions for several months. When Jessica met 

with the social worker, she reiterated that she was overwhelmed with caring for the 

children and trying to find a job and housing, and would probably ask that the children be 

placed with A.L. so she could get back on her feet. The social worker lost contact with

Jessica in early August 2013.

In the interim, A.L. spoke to the social worker on a monthly basis and established 

that his home was large enough for all three children to be placed with him. He had 

consistently maintained his full-time employment with an aerospace company and had 

started overnight weekend visits with the children, although he had been unable to visit

the children in June or July based in part on Jessica's refusal to facilitate visitation. 

By mid-October 2013, Jessica and the children had moved back in with Carmen. 

Jessica called her social worker to ask for referrals to get back into therapy after her 

counsel advised her that she needed to do so. She had not shown much improvement in 

getting the boys to therapy or school, however, and she and Carmen continued to argue, 

although not as much as they had previously.

 

9 Among other things, Jessica accused Carmen of taking her money and physically 

abusing her and the children. At some point, she obtained a temporary restraining order 

against Carmen. Jessica later said she had made up the allegations against Carmen "to 

protect [herself]" because Carmen was threatening to seek removal of the children from 

her.
8

At about the same time, A.L. filed a section 388 petition to have the children

placed with him based on the instability of the children's lives in Jessica's care, the

inconsistency of the boys' school attendance, and Jessica's interference with his visitation. 

The court set the matter for a contested evidentiary hearing. 

The court continued the contested hearing at the Agency's request based on 

Jessica's continuing refusal to cooperate with the social worker, and the Agency's need to 

do further follow-up with A.L. The court stated "This case is very frightening to me, 

quite candidly. It's not like I have been doing this for two months. I think that there's a 

potential that these kids are at risk, and that they are not being taken care of." It 

expressed frustration with the Agency's failure to timely evaluate A.L.'s situation, but 

also counseled Jessica that she might lose custody of the children if she continued to be 

uncooperative with the Agency. Jessica's counsel indicated the family would be moving 

again and provided the court and counsel with her client's new address and telephone 

number.10

After addressing a few safety issues identified by the Agency, A.L. received a 

positive home evaluation. He checked on enrolling the children in a school near his 

home, as well as after school childcare services, and had a good support network of 

family and friends in the area. Although A.L. had successfully completed his case plan, 

he was willing to undertake additional services, including domestic violence counseling,

to facilitate custody. The social worker recommended that the children be slowly 

transitioned to A.L.'s care. 

At a combined evidentiary hearing on A.L.'s section 388 petition and family 

maintenance review hearing in December 2013, the court received into evidence the 

 

10 After this hearing, Jessica claimed for the first time that A.L. had sexually 

molested his biological sister. The social worker later determined the allegation to be 

unfounded and concluded Jessica made it up to try to retain custody of the children. 
9

Agency's reports and heard testimony from the social worker, each of the parents, and 

Carmen.11 Although the Agency recommended leaving the children in Jessica's care and 

increasing A.L.'s visitation with the possibility of later transitioning the children to his 

care, the court granted the section 388 petition and ordered the Agency to transition 

custody to A.L., with A.L. to participate in group domestic violence therapy and 

individual therapy for the children "forthwith." Jessica appeals.

DISCUSSION

A party may petition the juvenile court under section 388 to change, modify or set 

aside a previous order. The petitioning party has the burden of showing, by a 

preponderance of the evidence, that there is a change of circumstances or new evidence 

and that the proposed modification is in the children's best interests. (§ 388; In re Jasmon 

O. (1994) 8 Cal.4th 398, 415.) Whether changed circumstances exist and the proposed 

change is in the children's best interests are questions addressed to the sound discretion of 

the juvenile court and we will not disturb its decisions unless they were arbitrary, 

capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) When two 

or more inferences reasonably can be deduced from the facts, we cannot reweigh the 

evidence or substitute our opinion for that of the juvenile court. (Ibid.) 

A.

Changed Circumstances or New Evidence

Jessica first contends the juvenile court abused its discretion by finding A.L.'s

section 388 petition was supported by changed circumstances or new evidence. 

However, this argument disregards several significant changes in the circumstances that 

occurred during the pendency of the proceedings. Although the dependency petitions set 

forth allegations of a serious history of domestic violence and physical abuse by A.L., 

 

11 Jessica was late for the hearing, which was significantly underway by the time she 

arrived. 
10

many of those allegations were later dismissed and the evidence before the court at the 

hearing permitted it to reasonably conclude the facts underlying the remaining allegations 

were largely, if not completely, fabricated by Jessica and members of her family, in many 

instances so that Jessica could retain custody of the children.12 

Further, although Jessica contends the children were doing well in her care, the 

evidence also suggested that she often put her own needs before theirs, moving them 

from one living environment to another, and failing to consistently get the boys to school 

and therapy. She exposed the children to her frequent and volatile confrontations with 

Carmen and others. She also had difficulty parenting the children, engaged in power 

struggles with M.L. and was often overwhelmed. Despite these issues, Jessica showed 

little insight into the children's needs, refused to accept that she needed help and did not

participate in services offered to her until after it became clear that she had to do so to 

keep the children in her care. This evidence was sufficient to support the juvenile court's 

finding of changed circumstances. 

B.

Children's Best Interests

The evidence cited above also supported the juvenile court's conclusion that 

placing the children with A.L. was in their best interests. Although they had not lived 

with A.L. alone in the past, he consistently expressed, and showed by his actions, his 

commitment to the children. Further, A.L. complied with the Agency's and the court's

requirements to facilitate his relationship with the children. He had maintained a stable 

job, created an appropriate home environment for the children to move in with him, and 

had taken steps to ensure the boys would be enrolled in school. 

 

12 Despite Jessica's complaints to the contrary, the evidence substantiates A.L.'s

consistent and vehement denial of the accusations of domestic violence and physical 

abuse by him. 
11

By contrast, the children had been subjected to a very unstable situation while 

living with Jessica, one in which they moved around quite a bit and the boys did not 

consistently get to school or participate in court-ordered therapy. Moreover, the children 

were exposed to Jessica's use of fabrication as a means of accomplishing her own 

personal goals, without regard to their needs. The court acted within its discretion in 

concluding that placing the children with A.L. was in their best interests. 

DISPOSITION

The orders are affirmed. 

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.