Filed 4/17/13 In re C.D. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juvenile Court Law. B241284, B242492

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
MICHELLE B.,
Defendant and Appellant. (Los Angeles County Super. Ct. No. CK75099)

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 th e Court of Appeal, for Defendant and Appellant. John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Deputy County Coun sel, for Plaintiff and Respondent.

______2 Michelle B. (Mother) appeals from the tr ial court’s orders denying her petitions
under Welfare and Institutions Co de section 388 and terminati ng her parental rights as to her son, C.D. 1 We reverse and direct the trial cour t to grant Mother’s petition and return C.D. to her custody.
BACKGROUND Our opinion in a previous appeal summa rized 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 Ch ildren and Family Services (DCFS) in
October 2008 after J.H. went to his school nur se to obtain an ice pack for his swollen
arm. J.H. told the nurse that his moth er’s boyfriend had gi ven him a ‘“whoopin”’ the night before. The nurse observed brui ses and swelling on J.H.’s arm and called
the DCFS.
“That afternoon a social wo rker 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 re sult of ‘“whoopins”’ by the boyfriend with an ‘extension cord.’ (Later in the interview, he clarified that the cord wa s a jump rope.) J.H. stated that he received this punishment because he fo rgot to give C.D. his bottle and then lied
about it. J.H. told th e worker that before th e 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 a nd his brother, R.R., by hitting them with the jump rope.
He said he never saw them hit C.D. J.H. al so told the worker th at 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 adm itted striking J.H. with the ju mp rope the previous night and showed the rope to the work er. She described it in her report as ‘about 6 inches long

1 All subsequent statutory references ar e to the Welfare and Institutions Code.3 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 boy friend ‘“whooped [J.H.’s] butt”’ the previous day for telling a lie. R.R. told the worker that th e 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, ‘M other denied allegations of physical abuse, although she c onfirmed that [J.H.] was struck the night before with the plastic jump rope by her boy friend.’ 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, sh e 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 nigh t 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 th at the three brothers be declared dependent children of the c ourt under Welfare and Ins titutions 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 ju risdiction and dispositio n hearing, Mother provided proof that she had voluntarily en rolled and was attending counseling at a Christian counseling center and that she a nd 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) [nonp ub. 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 object4 like a rope or a belt was unlawful in California. ‘Arkansas is different,’ he explained.
He admitted that he and Moth er ‘made a mistake’ and stat ed 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 summarize d reports from the Long Beach Police Department regarding the investigation of the in cident that led J.H. to go to the school nurse. The detective assigned to the case re ported principally on hi s interview with the boyfriend. According to the detective, the bo yfriend 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 boyfri end began crying and stat ed 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 adjudi cation 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 ‘c aus[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, shoulde r, arms, leg and hand with a plastic jump rope causing injuries.’ On cross-examina tion she clarified that the b oyfriend 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 t ype of physical discipline on them,’ Mother answered, ‘Yes.’ Mother submitted a letter from her parenting class instructor, dated the day before the disposition hearin g, describing that Mother ‘i s an active participant in my class, she seems eager to learn, and to do an ything 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 r ecently completed four consec utive sessions and has shown a positive progress.’5 “The court adjudicated the three boys depe ndents of the court under section 300, subdivisions (a), (b), (g) and (j). The court terminated ju risdiction over R.R. and C.D., placed them with their fathers and awarded th e fathers sole physical and legal custody of the children with weekly, monitored visitation for Mothe r. 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 DC FS ‘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 me ans to protect [the minor] without removal from parent’s or guardian’s physical custody. ’ The court ordered family reunification services and appropriate conjoi nt counseling for Mother and J. H. It also ordered that Mother complete a DCFS ap proved program of ‘parenti ng education, preferably a 52-week class, if the Depart ment can identify one.’” ( In re J.H. (Nov. 5, 2 009, B213547) [nonpub. opn.].) In an opinion filed Nove mber 5, 2009, we reversed the dispositional orders removing the children from Moth er’s home, terminating jurisd iction 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 ci rcumstances occurring after the dispositional orders warrant other remedies.” ( In re J.H. (Nov. 5, 2009, B213547) [nonpub. opn.].) On remand, the court reinstated jurisdicti on over R.R. and C.D. but did not return them to Mother’s home, because on Decem ber 25, 2009, Mother and the boyfriend
were involved in an altercati on at the home of J.H.’s patern al 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. Wh en the paternal aunt told them that J.H. was playing at a neighbor’s house, they head ed 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 fo llowing a felony conviction for assault with a firearm. According to the paternal aunt, her son told Mother and the boyfriend “to stop harassing6 his mother and that they need ed to leave.” The verbal confrontation escalated to a physical one in which, according to at leas t one witness, Mother spit on and struck the paternal aunt’s son, drawing blood. The pa ternal aunt’s son shot Mother’s boyfriend, wounding him in the leg. Mother reported the incident to the polic e, and the paternal aunt reported it to the DCFS. Upon investigating, the DCFS de termined 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 remo ved 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, th e DCFS filed a section 342 petition with respect to all three children, contending that the incident wi th the paternal aunt’s son endangered the children’s physical and emotional health and sa fety and placed them at risk of physical and emotional harm and damage. On November 1, 2010, the trial court sustained the petiti on. 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 suitabl e placement; J.H. was put in foster care, and C.D. was placed with his adult sister. The court also ordere d 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 termin ation of jurisdiction as to R.R. ( In re J.H. (Nov. 30, 2011, B228378, B230695) [nonpub. opn.].)7 The court-ordered case plan directed Mo ther to participate in individual counseling and DCFS-approved parenti ng 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 Marc h 27, 2010, Mother completed a 52-week parenting program for child abusers. The in structor 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 th e boyfriend completed their DCFS-approved anger management program. On March 16, 2011, the DC FS filed a section 388 petiti on 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 an ger management.” Accordingly, the DCFS reasoned that “[i]f mother’s progress c ontinues to be positive, the [DCFS’s]
recommendation will be for the children to re turn home at the next court hearing on
5/2/11. Unmonitored a nd/or overnight visits will facilit ate 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 he r anger. . . . I have great confidence that she is on her way to havi ng control over her past issues.” The letter from Mother’s individual therap ist was similarly supportive.

2 We note that the record contains no evid ence that either Moth er or her boyfriend ever struck any of the children in anger. The record also cont ains no evidence that either Mother or her boyfriend ever suffered fro m an anger management problem before Mother’s child was removed from her cust ody and placed in a home where a violent felon on parole was residing.8 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 th e therapist was fully apprised of the various versions of the altercation that took place on De cember 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 bot h 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 th e information in both reports carefully.” The January 5 detention report described in detail the c onflicting 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 obs erved 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 discreti on to liberalize Mother’s visitation to unmonitored or overnight vis its 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 [t he social worker] th e homework that she completed for the class and [the social wo rker] observed that [Mother] seems to be learning based on her answers on the homework.” Mother al so informed the social worker that the boyfriend wa s 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 th e court in which she stated th at she “no longer believe[s]” that corporal punishment is a “suitable mean s of discipline.” She also described the alternative methods of disciplin e and other parenting technique s that she has learned, and9 she informed the court that sh e was now working as a nurse w ith “special needs children” and that, through her work, she had learned “a great deal of patience.” Mother’s therapist testified at the hearing a nd 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 complian ce with the case plan.” (M other had in fact completed all court-ordered programs tw o 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 termina ting 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 he aring, Mother’s counsel
informed the court that R.R. was now livi ng with Mother, becaus e 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, Mo ther filed a petition under section 388, seeking return
of J.H. and C.D. to her car e 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 evalua tion from her job, showing th at she scored the highest possible rating in all 17 areas that were a ssessed. The court denied the petition without a hearing as to C.D., but the court gran ted a hearing on the petition as to J.H. On March 29, 2012, Mother filed anot her petition under section 388, seeking return of C.D. to her care and custody (her previous section 388 pe tition as to J.H. was still pending). The court denied the petition w ithout 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 previo us section 388 petition as to J.H. was still10 pending). On May 29, 2012, the court gran ted 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 counse ling. 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 report ed by mother or [J.H.] with the visits,” and J.H.’s foster father “has reported no be havioral problems with [J.H.] upon returning
from visits with his mother.” The DCFS also inspecte d 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 unm onitored or overnight visits with Mother (which the DCFS had requested in Marc h 2011). Consequently, the DCFS again recommended that the court grant the DCFS discretion to lib eralize Mother’s vis itation 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 supe rvision. The court denied the section 388 petition as to C.D. on the ground that “[t]here [has] been no ch ange of circumstances .” The court then proceeded to conduct the secti on 366.26 hearing as to C.D. The court found that C.D. was adoptable, that there were no legal impe diments to adoption, and that no exception to adoption applied. The co urt terminated Mother’s parental rights as to C.D. and ordered adoption as the permanent plan. Mother timely appealed from the court’s or der of June 25, 2012. We consolidated that appeal with Mother’s a ppeal from the denial of the section 388 petition she filed in
March 2012.11 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 dependen cy 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 intere sts’ 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 mechanis m’ when parents complete a re formation in the short, final period after the termination of reunification se rvices 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 particula r. (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 unjustifiabl e. The children were removed in October
2008 because Mother and her b oyfriend had used corp oral 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 Mo ther’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 disciplin ing 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 rep eated; the record contains no ev idence that they have ever
wavered from that commitment. As to the altercation with the paroled violent felon, the
record contains no evidence th at either Mother or her boy friend has been involved in any kind of inter-adult violence since then, or that any is lik ely to occur in the future.12 Both Mother and her boyfriend voluntarily entered a parenting pr ogram before any had been ordered. Thereafter, Mother made consis tent progress in all court-ordered programs and actually completed all of them (with fl ying colors, according to documents in the record) before reunification services were terminat ed. Her boyfriend likewise completed anger management and parenting programs. Mother is now employed as a licensed vocational nurse (she was unemployed for a pe riod of time during the pendency of these proceedings), works with disabled children and adults, and has received a glowing performance evaluation. Her home is “clea n, 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 ove rnight 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 circ umstances as to J.H. Between November 2010, when the trial court entered its dispositi on order as to C.D. (which has remained unchanged), and June 2012 (when the trial court denied Mother’s last petition under se ction 388), at least the following changes had taken place: Mo ther timely completed all court-ordered programs; her boyfriend timely completed pa renting 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 re turned to Mother’s custody and lived there for at least six m onths without incident; and J.H. received
unmonitored visits with Mother fo r nine months without incident. The remaining issue is C.D.’s best intere sts. 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 re cord contains no evidence to support that13 conclusion. In addition to co mpleting all court-ordered prog rams, Mother has repeatedly renounced the use of corporal punishment, bo th 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 leas t 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 ev idence that returning C.D. to Mother’s custody (particularly under DCFS supervision) woul d not be in C.D.’s
best interests. For all of the foregoing reasons, we c onclude that the trial court abused its discretion by denying Mother’s section 388 petition seeking th e return of C.D. to her custody. We sympathize, however, with the DC FS’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 th erefore direct the trial court on remand to authorize the DCFS to arrange a brief transi tional period of unm onitored 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 re quested 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-hal f months later, on May 2.14 DISPOSITION The June 25, 2012, order denying Mothe r’s section 388 petition as to C.D. is reversed, the order terminating her parental right s 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 supe rvision following, if necessary, a brief transitional period of unmonitored and overnight visits. If th e parties file a stipulation to immediate issuance of the remittitur, then the clerk shall issue the re mittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)
NOT TO BE PUBLISHED

.

ROTHSCHILD, Acting P. J. We concur:

CHANEY, J. JOHNSON, J.