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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re P.G., a Person Coming Under the Juvenile Court Law

. B31990 7 (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 Superio r Court of Los Angeles County, Nancy A. Ramirez, Judge. C onditional ly

revers ed and remand ed

.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 Coun ty Cou ns el, Sa lly Son, Deputy County C oun sel, for Plaintiff and Respondent.

___________________________

I. INTRODUCTION

D.G. (father) appeals from order s denying his request

, pursuant to Welfare and Institutions Code 1 section 388

, to
withdraw his waiv er of reunific ation services and ter mi nating his parental rights over t h e child P.G. , born in 2013 (child)

, pursuant to section 366.26 . We will conditionally reverse and remand f or the juvenile court to apply the correct legal standard in

a djudicati ng fat her ’ s motion t o wi thdraw his waiv er of
reunification services.

II. BACKGROUND

A. Prior Dependency Jurisdiction

In December 2017, the juvenile court sustained a dep endency petition regarding the child and her younger brother
K. G

. , which alleged that their mother H .D. (mother) had a h istory of substance abuse and that mother and father ha d a

1 Further statutory references ar e t o the Wel fa re a nd Institutio ns C o d e

.3

history of domestic violence. 2 The child w as ordered sui tably placed with maternal grandparents and the parents receive d family reunification services. M aternal gr andparents h ad cared
for the child since her birth. The juvenile court subsequently terminated jurisdictio n, granted mo ther sole physical custody of the child, granted the parents jo i nt legal custody, and granted monitored visitation fo r f ather.

B. C urrent Depende ncy Proceeding

On July 20, 2020, the Department filed a section 300 petition, alleging that th e child was at risk of serious physical
harm because of mother’ s criminal activity and her history with drugs and failur e to comply with court

- ord ered services. In August 2020, the child re ferred to father and m o ther by
the i r first names. She reported not knowing whether she enjoyed spending time with father but was happy at maternal grandp arents’ home. In a jurisdiction/disposition r eport, filed in August 202 0, the Department stat e d that it would assess whether the child
should remain in the care of maternal grandparents under legal guardianship. On October 9, 2 020, the Depart ment filed an amended section 300 petition w hich alleged that father’s history of

su bstance a buse, domestic v iolence, and inability to provide the
child with basi c necessities placed th e child at risk of serious physical harm.

2 K.G. is not at issue i n this appeal and mother is not a party to this ap peal

.4 In a last m inute information report filed October 14, 2020
, father stated that he “ ‘does not mind if

. . . [m] at e rnal [ g] randparents ha[ve] full legal guardianship over the children as long as he maintained some of his rights. ’ ” Specifi cally, father
wanted to have unmonitored visitation with th e child. M aternal

g randmother repo rted that fat he r visite d “‘on and off ’” during
weekends. Maternal grandmother was willing to provide permanency to the child, either through adoption or legal

gua rdianship.
On O ctober 15, 2020, the juvenile cour t sustained the counts alleg in g that mother endangered the childre n with her
cri mina l activity and that father was unable to provide basic
necessities.
In a last minute information report filed Nove mber 2, 2020, maternal grandmother reported that father was “‘ ok a y’” with the child being adopted. Fath er stated he had a good relations hip with maternal grandparents and appreciated what they did for
the childre n. In a las t minute information report filed De cember 17, 2020, the Departme nt reported that father approved of the child remaining in maternal grandparents’ care an d approved of the maternal grandparents being gr anted lega l guardianship

. Mater nal gran dmother was also open to a legal gua rdianship.
On Dec ember 18, 2020, father executed and filed a waiver
of reunification services for the child. Father’s counsel sign ed a
declarati on 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 hav e services t hat could help [hi m] regain cust ody of [ th e ch ild ]

. ” Father stated he unde rsto od. Father also confirmed5

that he had either signed the form or authorized his attorney to
do so. The court stated that fa ther had enter ed into a valid
waiver and then later issued an order finding that fath er ’ s waive r

wa s knowing , intelligent, and voluntary

. The c ou rt observed that

“ as to disposition, father is waiving reunifica tion services and is in agree ment with a pla n of legal guardia nship by the maternal grandparents. ”
At the March 1, 2021, dispositi on hearing , th e juven ile court declared the child a dependent of the court, ordered the child suitably placed, and set the m atter for a permanency plan
hear ing under section 366.26.

C

. Subsequent Rep orts

In a section 366.26 r eport filed on June 11, 20 21
, the
De part ment reported that m aternal grandparents wer e interested in and willing to adopt the child an d t he chi ld reported
feelin g “‘g ood’” about being adopted. Th e Department identified the permanent plan for the child to be adoption.
At the June 2 8, 2021, h eari ng, the cou rt advised father that the Department recommended adoption a s the permanent p lan.
F ather responded that “this is the first time t hey are telling me
abou t adopting [the chi ld]

. . . . [ N ] o one told me a bout adoption.”
The court or der ed the Depa rtment to re

- interview maternal grandp are nts re ga rding adoption, r efer the case to the Children’s
Consortiu m for a post adoption agreement, and w ork with father regarding visitation.
In a section 336.26 report filed on Sept emb er 23 , 2021, th e Departme nt r eported m aternal grandpa rents re m ained
committed to adopting the child

. According to the maternal6

grandpare n ts, f

ather stated, on more than one occasion, that he
was in agreement with the adoption plan.
In a last minute information report f iled Dece mbe r 27, 2021, the Depart ment reported that the child had sporadic visits
with father on c e per weekend fo r one t o three h o urs. The child engaged “ ‘okay’” with f ather but did not want to live with eith er parent and wished to remain in materna l g ra ndpa rents ’ car e. Father reported the visits were “okay” a nd that he “hangs out”
while the child and h a lf

- s ibling played.
In a last minute in formation report filed February 25, 2022

, maternal grandmother stated t hat t he ch ild viewe d maternal

g randparents as her mo ther and father. The Department
concluded that the ch ild had a s p ecial bond and attachment to maternal g randparents a nd disrupting th at bond could have long
l asting emotiona l effect on the child. It once again recommended adoption by maternal gr andparent s as the permanent plan

.

D

. Section 388 Petition and Report s

On February 22, 2022, father filed a petition , purs uant to
section 388, to change the court’s p rior D e cember 18, 2020, order

, and allow father to with draw his prior waiver

. Ac cordi ng to father, the o rder entered on that date “should be ch anged”
because he had filed his prior waiver of reunif ication servic es “with the understanding t ha t the r ecommended permanent plan for [child] was legal guardianship with her caretake rs/materna l

gra ndpare nts, as he w i sh[ed] to maintain their [ sic ] parental relationship. ” Father also explained t hat the change he requested was in the chi ld ’s b est interest.7 In a section 388 res ponse report, filed April 1, 202 2, the Department rep orted that f a ther was not consistent in his visits

w ith the child and the child did not have a bond with him

. The

c hild was not co mf

orta ble with father and was not sad when
father left. Father acknowledg ed that the child was happy in

ma t ernal grandparents’ care, but c omplaine d that no one had
taken the time to observe his bond w ith the child.
The child di d not rec all living anywhere other than with maternal grandparents. She w as very comfortable w ith being
ad o pted by maternal grandparents. She wou ld not be sad if sh e did no t live with m o ther and fath er because sh e “ ‘ [didn’t] kn ow them a lot. ’ ” In a last minute information filed April 12 , 2022, t he child
stated she was not comforta b le with father because she was

“ ‘ kinda ’ ” scared of hi m. The child reported tha t fathe r woul d yell
at half

- s ibl ing and sh e was con ce rned that he would yell at her

too.

E

. Section 388 and 366. 26 Hearing

On April 13, 2022, th e juvenile court conducted a hearing

on father’s secti on 388 petition. Fath er ’s counsel argued that the

cou rt sho uld gr an t th e p etition because there had been a change
in circumstance . Father stated tha t he had waived his

r eunification s ervices based on “an agreement” that th e permanent pl an would be legal guardianship but that the
maternal grandparents had “ reneged on th at agr ee ment

. . . .”
Father’s counsel added that it would be in the child ’ s best
intere st to gran t the petition because father had been v isiting her
“o n an almost weekly basis” and the two sh ared “a bond.”8 Counse l f

or the child requested that the petition be denied.
C ounsel argued that granting the petitio n was n ot in the child’s
best interest because she had been very clear that she wanted to be adopted by maternal grandp arents. Th e D epartm ent joined in
ch ild’s counsel’s argument. Following arg ument, t he juvenile co urt denie d fath e r’s section 388 petition. The cou rt agreed there was a change in
circumst ance because the De partment’s recommended pe rmanen t plan had chang ed from legal guardianship to adoption. The court
conclud ed, however, that it would n ot be in the c hild’s best
interest for father to rece ive reunification services. The court
noted tha t the child “unequiv oc all y stat ed multiple t imes she wishe[d] to be adopted by her current caregivers. While they a re her maternal grand parent s , [ she] doe s not refer to them as grand parents, but a s mom and dad. In addition, she has bee n living with them since she was a day ol d.” The co urt found that
while father’s communication and contact with the child w as fairly consistent, it wa s not enough to overcom e the best int ere sts of the chi ld.
The juvenile court then proceeded to conduc t the section

366.26 h ear ing. After hearing arguments by counsel, the court found that the child was adoptable and that no exception to adopti o n applied . It therefore ordered parent al right s
term inated. Father tim ely appealed.9 II I. DISCUSSI ON

Father contends that the juvenile court applied the wrong legal standard when it denied his motion to withdraw his waiver
of reun i ficat ion serv ices

. We agree. “There is no provisio n in the [Welf are and Institution s] [C]ode or the Rules of Court for withdrawal of a waiver [of
reunification s ervices.] [Citation s. ]

. . . . Surely [allowin g su c h a withdrawal] would be permissible in appropriate cases where the requirements of the stat ute were not s atisfied o r a paren t was

coe rced or misled into waivi ng her rights.” ( Cynthia C. v. Superior Cou rt (1999) 72 Cal.App.4th 11 96, 12 00 ( Cynthia C. )

. )
W e review the juvenile court’s denial of a motion to withdraw a
waiver of reunificati on servi ces for an abu se of d is cretion. ( See
id. at p. 1201.) A court abuses its discretion when it applies the wrong legal standard. ( Costco Wholesale Corp. v. Superior Court (20 09) 47 Cal. 4th 725, 733; In re . M.W. (2018) 26 Cal.App. 5th 921, 932 .)
Alt hough he styled his mo tion as a petition to change a prior order pursuant to section 388, father so ught to withdraw his prior waiver of reunification services; and, t he “ name of a motion is not controlling

. . . . ” ( Powell v. County of Orange (2011)

19 7 C a l. App.4 th 1573, 1577

. ) The juvenile court consid ered the
best interest of the child but that is not the determin ative issue. The court needed to make a finding on whether father had

esta blis hed that he had been misled when he waive d
reunification servic es p ursu ant to Cynthi a C ., supra , 72 Cal.App. 4th a t p age 1200

. Accordingly, we will remand for the
court, in the first instance, to exercise its dis cretion whether to10

grant father ’ s moti on to wit hdraw his waiver. ( See In re
Donnovan J. (1997) 58 C a l. App. 4th 1474 , 14 78 .) 3

3 Fat her’s challenge to the co urt ’s order termin ating his

pa rental rights is based solely on his argument that the court erred in denying his r equest to w i thdra w his wai ver of

re unification services

.11 IV

. DI SPOSITION

The order s de nying fath er ’ s section 388 petition and terminating his parental rights are conditional l y re versed and
remanded for the j uvenile court to exercise its discretion whet her to g rant or deny father ’ s request to withdr aw his waiver of
reunification services pur suant t o C ynthia C.

, supra , 72 Ca l.App.4th at page 1200

. If the req uest to w ithdraw th e waiver is denied, the court may reinstate the order terminating father ’ s parental rights. If the request to withdraw the wa iver is grante d

, the court shall conduct fu rther proceedings consistent with this opinion.

NO T TO BE PUBL ISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBI N, P. J.

BAKER , J.