Filed 12/16/22 In re P.G. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re P.G., a Person Coming 

Under the Juvenile Court Law.

 B319907

 (Los Angeles County

 Super. Ct. No.

 17CCJP00200C)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

D.G.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Nancy A. Ramirez, Judge. Conditionally

reversed and remanded.
2

David M. Yorton, Jr., under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, Sally Son, Deputy County Counsel, for 

Plaintiff and Respondent.

___________________________

I. INTRODUCTION

D.G. (father) appeals from orders denying his request, 

pursuant to Welfare and Institutions Code1 section 388, to 

withdraw his waiver of reunification services and terminating his 

parental rights over the child P.G., born in 2013 (child), pursuant 

to section 366.26. We will conditionally reverse and remand for 

the juvenile court to apply the correct legal standard in 

adjudicating father’s motion to withdraw his waiver of 

reunification services.

II. BACKGROUND

A. Prior Dependency Jurisdiction

In December 2017, the juvenile court sustained a 

dependency petition regarding the child and her younger brother 

K.G., which alleged that their mother H.D. (mother) had a 

history of substance abuse and that mother and father had a 

1 Further statutory references are to the Welfare and 

Institutions Code.
3

history of domestic violence.2 The child was ordered suitably 

placed with maternal grandparents and the parents received

family reunification services. Maternal grandparents had cared 

for the child since her birth.

The juvenile court subsequently terminated jurisdiction, 

granted mother sole physical custody of the child, granted the 

parents joint legal custody, and granted monitored visitation for 

father.

B. Current Dependency Proceeding

On July 20, 2020, the Department filed a section 300 

petition, alleging that the child was at risk of serious physical 

harm because of mother’s criminal activity and her history with 

drugs and failure to comply with court-ordered services.

In August 2020, the child referred to father and mother by 

their first names. She reported not knowing whether she enjoyed 

spending time with father but was happy at maternal 

grandparents’ home.

In a jurisdiction/disposition report, filed in August 2020, 

the Department stated that it would assess whether the child 

should remain in the care of maternal grandparents under legal 

guardianship.

On October 9, 2020, the Department filed an amended 

section 300 petition which alleged that father’s history of 

substance abuse, domestic violence, and inability to provide the 

child with basic necessities placed the child at risk of serious 

physical harm.

2 K.G. is not at issue in this appeal and mother is not a party 

to this appeal.
4

In a last minute information report filed October 14, 2020, 

father stated that he “‘does not mind if . . . [m]aternal 

[g]randparents ha[ve] full legal guardianship over the children as 

long as he maintained some of his rights.’” Specifically, father 

wanted to have unmonitored visitation with the child. Maternal 

grandmother reported that father visited “‘on and off’” during 

weekends. Maternal grandmother was willing to provide 

permanency to the child, either through adoption or legal 

guardianship.

On October 15, 2020, the juvenile court sustained the

counts alleging that mother endangered the children with her 

criminal activity and that father was unable to provide basic 

necessities.

In a last minute information report filed November 2, 2020, 

maternal grandmother reported that father was “‘okay’” with the 

child being adopted. Father stated he had a good relationship 

with maternal grandparents and appreciated what they did for 

the children.

In a last minute information report filed December 17, 

2020, the Department reported that father approved of the child 

remaining in maternal grandparents’ care and approved of the 

maternal grandparents being granted legal guardianship. 

Maternal grandmother was also open to a legal guardianship.

On December 18, 2020, father executed and filed a waiver 

of reunification services for the child. Father’s counsel signed a

declaration stating that he had explained father’s rights to him.

At the December 18, 2020, disposition hearing, the juvenile 

court asked father whether he understood that he was “giving up

the right to have services that could help [him] regain custody of 

[the child].” Father stated he understood. Father also confirmed 
5

that he had either signed the form or authorized his attorney to 

do so. The court stated that father had entered into a valid

waiver and then later issued an order finding that father’s waiver 

was knowing, intelligent, and voluntary. The court observed that 

“as to disposition, father is waiving reunification services and is

in agreement with a plan of legal guardianship by the maternal 

grandparents.”

At the March 1, 2021, disposition hearing, the juvenile 

court declared the child a dependent of the court, ordered the 

child suitably placed, and set the matter for a permanency plan

hearing under section 366.26.

C. Subsequent Reports

In a section 366.26 report filed on June 11, 2021, the 

Department reported that maternal grandparents were 

interested in and willing to adopt the child and the child reported 

feeling “‘good’” about being adopted. The Department identified

the permanent plan for the child to be adoption.

At the June 28, 2021, hearing, the court advised father that 

the Department recommended adoption as the permanent plan. 

Father responded that “this is the first time they are telling me 

about adopting [the child]. . . . [N]o one told me about adoption.” 

The court ordered the Department to re-interview maternal 

grandparents regarding adoption, refer the case to the Children’s 

Consortium for a post adoption agreement, and work with father 

regarding visitation.

In a section 336.26 report filed on September 23, 2021, the 

Department reported maternal grandparents remained 

committed to adopting the child. According to the maternal 
6

grandparents, father stated, on more than one occasion, that he 

was in agreement with the adoption plan.

In a last minute information report filed December 27, 

2021, the Department reported that the child had sporadic visits 

with father once per weekend for one to three hours. The child 

engaged “‘okay’” with father but did not want to live with either 

parent and wished to remain in maternal grandparents’ care. 

Father reported the visits were “okay” and that he “hangs out” 

while the child and half-sibling played.

In a last minute information report filed February 25, 2022, 

maternal grandmother stated that the child viewed maternal 

grandparents as her mother and father. The Department 

concluded that the child had a special bond and attachment to 

maternal grandparents and disrupting that bond could have long 

lasting emotional effect on the child. It once again recommended 

adoption by maternal grandparents as the permanent plan.

D. Section 388 Petition and Reports

On February 22, 2022, father filed a petition, pursuant to 

section 388, to change the court’s prior December 18, 2020, order,

and allow father to withdraw his prior waiver. According to 

father, the order entered on that date “should be changed” 

because he had filed his prior waiver of reunification services 

“with the understanding that the recommended permanent plan 

for [child] was legal guardianship with her caretakers/maternal 

grandparents, as he wish[ed] to maintain their [sic] parental

relationship.” Father also explained that the change he 

requested was in the child’s best interest.
7

In a section 388 response report, filed April 1, 2022, the 

Department reported that father was not consistent in his visits 

with the child and the child did not have a bond with him. The 

child was not comfortable with father and was not sad when 

father left. Father acknowledged that the child was happy in 

maternal grandparents’ care, but complained that no one had 

taken the time to observe his bond with the child.

The child did not recall living anywhere other than with 

maternal grandparents. She was very comfortable with being 

adopted by maternal grandparents. She would not be sad if she 

did not live with mother and father because she “‘[didn’t] know

them a lot.’”

In a last minute information filed April 12, 2022, the child

stated she was not comfortable with father because she was 

“‘kinda’” scared of him. The child reported that father would yell 

at half-sibling and she was concerned that he would yell at her 

too.

E. Section 388 and 366.26 Hearing

On April 13, 2022, the juvenile court conducted a hearing 

on father’s section 388 petition. Father’s counsel argued that the 

court should grant the petition because there had been a change 

in circumstance. Father stated that he had waived his 

reunification services based on “an agreement” that the 

permanent plan would be legal guardianship but that the 

maternal grandparents had “reneged on that agreement . . . .” 

Father’s counsel added that it would be in the child’s best 

interest to grant the petition because father had been visiting her 

“on an almost weekly basis” and the two shared “a bond.”
8

Counsel for the child requested that the petition be denied. 

Counsel argued that granting the petition was not in the child’s 

best interest because she had been very clear that she wanted to 

be adopted by maternal grandparents. The Department joined in 

child’s counsel’s argument.

Following argument, the juvenile court denied father’s 

section 388 petition. The court agreed there was a change in 

circumstance because the Department’s recommended permanent 

plan had changed from legal guardianship to adoption. The court 

concluded, however, that it would not be in the child’s best 

interest for father to receive reunification services. The court 

noted that the child “unequivocally stated multiple times she 

wishe[d] to be adopted by her current caregivers. While they are 

her maternal grandparents, [she] does not refer to them as 

grandparents, but as mom and dad. In addition, she has been 

living with them since she was a day old.” The court found that 

while father’s communication and contact with the child was 

fairly consistent, it was not enough to overcome the best interests 

of the child.

The juvenile court then proceeded to conduct the section 

366.26 hearing. After hearing arguments by counsel, the court 

found that the child was adoptable and that no exception to 

adoption applied. It therefore ordered parental rights 

terminated. Father timely appealed.
9

III. DISCUSSION

Father contends that the juvenile court applied the wrong 

legal standard when it denied his motion to withdraw his waiver 

of reunification services. We agree.

“There is no provision in the [Welfare and Institutions] 

[C]ode or the Rules of Court for withdrawal of a waiver [of 

reunification services.] [Citations.] . . . . Surely [allowing such a 

withdrawal] would be permissible in appropriate cases where the 

requirements of the statute were not satisfied or a parent was 

coerced or misled into waiving her rights.” (Cynthia C. v. 

Superior Court (1999) 72 Cal.App.4th 1196, 1200 (Cynthia C.).) 

We review the juvenile court’s denial of a motion to withdraw a 

waiver of reunification services for an abuse of discretion. (See

id. at p. 1201.) A court abuses its discretion when it applies the 

wrong legal standard. (Costco Wholesale Corp. v. Superior Court 

(2009) 47 Cal.4th 725, 733; In re. M.W. (2018) 26 Cal.App.5th 

921, 932.)

Although he styled his motion as a petition to change a 

prior order pursuant to section 388, father sought to withdraw 

his prior waiver of reunification services; and, the “name of a

motion is not controlling . . . .” (Powell v. County of Orange (2011) 

197 Cal.App.4th 1573, 1577.) The juvenile court considered the 

best interest of the child but that is not the determinative issue. 

The court needed to make a finding on whether father had 

established that he had been misled when he waived 

reunification services pursuant to Cynthia C., supra, 72 

Cal.App.4th at page 1200. Accordingly, we will remand for the 

court, in the first instance, to exercise its discretion whether to 
10

grant father’s motion to withdraw his waiver. (See In re 

Donnovan J. (1997) 58 Cal.App.4th 1474, 1478.)3

3 Father’s challenge to the court’s order terminating his 

parental rights is based solely on his argument that the court 

erred in denying his request to withdraw his waiver of 

reunification services.
11

IV. DISPOSITION

The orders denying father’s section 388 petition and 

terminating his parental rights are conditionally reversed and 

remanded for the juvenile court to exercise its discretion whether 

to grant or deny father’s request to withdraw his waiver of 

reunification services pursuant to Cynthia C., supra, 72 

Cal.App.4th at page 1200. If the request to withdraw the waiver 

is denied, the court may reinstate the order terminating father’s 

parental rights. If the request to withdraw the waiver is granted, 

the court shall conduct further proceedings consistent with this 

opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.