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In re Scarlett S. CA4/2 (2022) · DecisionDepot
/ California Court of Appeal In re Scarlett S. CA4/2 Unpublished Filed 5/26/22 In re Scarlett S. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re SCARLETT S., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E076651 Plaintiff and Respondent, (Super.Ct.No. RIJ1900225)
v. OPINION
C.S. et al.,
Defendants and Respondents;
SCARLETT S., Appellant.
APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.
Affirmed with directions.
Matthew I. Thue, under appointment by the Court of Appeal, for Appellant.
Gregory P. Priamos, County Counsel and Julie A. Jarvi, Deputy County Counsel,
for Plaintiff and Respondent.
1
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Respondent, J.A.
Scarlett S., a minor, appeals the trial court order granting her father’s Welfare and
Institutions Code section 388 petition and extending reunification services for six months.
She argues the trial court couldn’t extend services for more than two and a half months and
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
extending services was not in her best interests. We conclude the judge did not abuse her
discretion by extending services, and therefore affirm.
FACTS A. Detention and Petition
In March 2019, mother, who was 37 weeks pregnant, went to the hospital with
abdominal pain and heavy bleeding and reported she had used methamphetamine and
heroin that day. She gave birth to Scarlett by caesarian section, and both mother and child
tested positive for opiates. Mother also tested positive for methamphetamine. She
reported Scarlett’s father also used drugs.
A social worker visited the parents in the hospital the next day. Father said he and
mother had been in a relationship for about a year but weren’t married. He said each lived
with their own families, but he sometimes stayed with mother at her mother’s home and
planned to move in with her there.
Father said he had worked at his family’s furniture business for 12 years, most
recently managing the warehouse. He had prior drug possession charges and had served
about two months at a rehabilitation center in early 2019. He learned mother was
pregnant with Scarlett when he was released from the rehabilitation center. He said he
was excited about becoming a father and realized he “needed to return to work and be on
the ‘straight and narrow.’” Nevertheless, he admitted recent heroin and
Father said he began using drugs in 2014 after suffering a back injury. He said he
started with Norco or Hydrocodone but turned to other drugs. He also admitted using
heroin and methamphetamine with mother the day before. He said mother had begun
methadone treatment. Mother said she had a history of mental health problems and a
history of substance abuse that began when she suffered a gymnastics injury at age eight
and started taking pain medications.
The maternal grandmother told the social worker mother had a bedroom in her
home, and she had another bedroom that could be used as a nursery. She said father didn’t
live with them and she hadn’t met him before the delivery. Mother had been to several
rehabilitation facilities. She had been prescribed Norco to treat gymnastics injuries and
migraines. The maternal grandmother said mother had been diagnosed with Turrets
Syndrome, ADHD, and bipolar disorder as a child. She said she had recently reported
mother to law enforcement after she took money from her bank accounts, she believed to
buy drugs. She said she wanted to provide a home for her granddaughter and would
On April 2, 2019, mother and Scarlett were discharged and went home with the
grandmother. The parents went to drug test the next day. Father admitted using heroin
and he tested positive for amphetamine, methamphetamine, codeine morphine, and acetyl
morphine. Mother tested positive for amphetamine, methamphetamine, morphine, and
acetyl morphine. Both parents continued to use drugs, though they insisted they didn’t
use in the child’s presence and assured she had care from other people when they used.
The social worker notified them the Department of Public Social Services (department)
would request removal of the child.
On April 30, 2019, the department filed a petition alleging Scarlett came within
Welfare and Institutions Code section 300, subdivision (b)(1) (unlabeled statutory
citations refer to this code) because mother had failed to obtain prenatal care and had an
extensive unresolved substance abuse history, mental health issues, and a criminal history.
They also alleged father knew of mother’s problems and had his own substance abuse
problem and criminal history.
On May 1, 2019, both parents appeared and were appointed counsel. Father’s
counsel informed the juvenile court judge, Riverside County Superior Court Judge Cheryl
Murphy, that he had straightened out his medical coverage so he could enter a drug
treatment program. He also represented that Scarlett’s paternal grandparents were
available for placement. The judge found a prima facie case the child came within section
300 and ordered her detained from her parents. She ordered the child be placed in foster
care and ordered supervised visits at least twice weekly.
B. Jurisdiction and Disposition
On May 15, 2019, father admitted continuing to use heroin and methamphetamine.
He reported he had attended junior college but said he didn’t complete his program. He
said he was unemployed but had held a variety of jobs in the past. Both parents were
considering in-patient drug programs. They reported living with Scarlett’s maternal
grandmother, so placement with her wasn’t possible and the child remained in foster care.
On July 1, 2019, father appeared at a contested hearing. The department filed an
amended petition. Father offered no affirmative evidence, and his counsel explained he
was still trying to get into a drug treatment program. The judge found father to be the
minor’s presumed father. She found the allegations in the amended petition true and the
department had made reasonable efforts to prevent removal and ordered Scarlett removed
The judge ordered the department to provide reunification services for both
parents and informed them if they failed to participate regularly and make substantive
progress in their treatment programs their reunification services could be terminated at the
six-month review hearing, which could result in the termination of their parental rights.
The judge set the six-month review hearing for January 7, 2020.
C. The Six-Month Reunification Period Before the six-month review, the department recommended terminating
reunification services and setting a section 366.26 hearing. Scarlett remained in the same
foster home where she had been since May 1, 2019. However, the foster family were not
Mother still lived with the maternal grandmother. However, father had been
incarcerated after an arrest the previous September for inflicting corporal injury on a
spouse, possessing a controlled substance and paraphernalia, and committing petty theft.
He planned to move in with his parents after his release on January 31, 2020. The
department wrote to father to advise him to seek out parenting classes and drug treatment
in jail, but he said the jail didn’t respond. After being released, he reported working at his
parents’ furniture company and asked for information to assist him in getting into a
On February 18, 2020, both parents appeared for a hearing. Father’s counsel
represented father had been released two weeks before the hearing, had completed a
correspondence parenting class while in jail, and had enrolled in a program through
Riverside University Health System Behavioral Health on his release. He argued the
father hadn’t had reasonable access to reunification services during his incarceration.
The judge found the parents did not avail themselves of the services that were offered to
them. She noted father had completed a parenting program while in jail but emphasized
he hadn’t completed any other services.
The judge recognized the parents had been honest about their relapses and
encouraged them to seek treatment. “The Court certainly commends the parents for being
honest on their relapse. I think that’s first and foremost important factor in terms of being
on your way to sobriety. The Court does hope that the parents continue to be in services,
because there’s an avenue for parents to return to court on what is called a JV180 or a
388 petition to request change, if there has, in fact, been a change of circumstances.”
However, by that point the judge found “both mother and father failed to participate
regularly and make substantive progress in a court-ordered treatment plan, and there is no
substantial probability of return if given another six months of services.” The judge
terminated reunification services and set a section 366.26 hearing for June 17, 2020.
D. Father’s Treatment and Section 388 Petition
On February 24, 2020, the department placed Scarlet in a matched adoptive home.
On June 5, 2020, the social worker reported father “has not maintained contact with the
Department since his release from jail” and “has not provided the Department with any
evidence that he is addressing the issues that brought him to the attention of the
Department. Mother had visited with Scarlett and participated in programs during the
On June 17, 2020, both parents appeared with counsel for a section 366.26 and
section 366.3 postpermanency hearing. Mother substituted in new counsel and father’s
counsel informed the court father had been in a drug treatment program at the Salvation
Army for three months and was sober. The judge continued the hearing to August 14 at
mother’s request to allow her new counsel to prepare. She also set August 28 for a
hearing, if needed, on any section 388 petitions the parents may file.
On July 17, 2020, mother filed a section 388 petition, seeking reinstatement of
reunification services. The department continued to recommend the judge terminate
parental rights. However, they noted father had been having positive virtual visits with
Scarlett. On August 14, the parties entered a stipulation related to the section 366.3
postpermanency hearing, and the judge set the remaining issues for August 28, 2020.
However the judge continued the hearing to October 9 due to mother’s counsel’s
On October 8, 2020, father filed a section 388 petition, requesting an additional six
months of reunification services. He reported he had entered a rehabilitation program at
the Salvation Army on February 17, 2020. He said he had participated in counseling, had
been drug tested daily, and completed all individual and group assignments. The six-
month program included counseling, a 12-step program, assistance from a sponsor, and
participation in an anger management program.
The next day, father appeared for the hearing and the department requested the
judge deny both parents’ section 388 petitions. Father’s counsel emphasized father had
been in an intensive drug treatment program for six months and asked the judge to order
the department to file a formal response to his section 388 petition. The judge found
father’s petition established a prima facie case for finding changed circumstances and set
an evidentiary hearing on both parents’ petitions for November 10, 2020.
E. The Section 388 Hearing
The department maintained their recommendation that the judge deny the section
388 petitions and terminate parental rights. The social worker reported mother was
attending a substance abuse program, but her performance was incomplete and she missed
numerous drug tests. The department commended father’s efforts at rehabilitation, but
relied on his past drug abuse history as a basis to deny the petition. They reported father
had completed the Salvation Army program on October 21, 2020, participated in three
NA/AA meetings a week with a sponsor, and worked for his parents’ furniture company.
They represented Scarlett was doing well in her placement and father was participating in
appropriate online visits.
On November 10, 2020, the judge continued the hearing to December 30 so she
could review drug test results. The department submitted another report, again
recommending the judge deny the petitions and terminate parental rights. They said
mother had not completed her substance abuse program and was not drug testing. They
said father’s aftercare program was put on hold because of COVID, but he continued to
attend online NA/AA meetings and stayed in contact with his sponsor as well as the three
people he was sponsoring. Father had returned negative on-demand drug tests but had
been confused concerning the process on some testing dates. The department reported he
was attentive during an in-person visit with Scarlett, and the child became more
interactive and at ease in successive visits, and they appeared to enjoy each other’s
On December 30, 2020, the court continued the hearing to February 16, 2021,
because the social worker and her supervisor were unavailable to testify, despite being
The department continued to recommend the judge deny the petitions and
terminate parental rights. They reported father continued to work in his parents’ furniture
store and was complying with his probation terms. His drug tests were negative. They
said the child appeared to be very happy to see her father, even crying when he left the
room and running out after him and jumping into his arms. The social worker reported
being surprised by this reaction because Scarlett is normally very shy. She wanted
father’s attention and hugs throughout the visit. Scarlett was “very interactive with her
father, preferring to sit on his lap while they interact,” and wanting him to pick her up.
She was “at ease in her interactions with the father,” who complied with all visiting rules.
On February 16, 2021, both parents appeared in court for a hearing on their
petitions. Father represented he continued to reside in Murrieta with his parents, working
full-time in their furniture company. He said he planned to gain additional sales
experience and return to school for a business degree and study interior design. He
admitted to his substance abuse problem and said he had benefitted from the Salvation
Army program, learning coping skills, and “tools just to help me get back on track.” He
said he had been sober for 11 months, had a sponsor and was on the ninth step of his 12-
step program. He also had benefitted from anger management classes.
Father explained he had some problems finding drug testing sites because one
facility had stopped providing tests through the department and others had closed because
the people working there had contracted COVID. However, he said he had not tested
positive while at the Salvation Army, and had a negative hair follicle test and several
other negative drug tests since leaving the program. He said he was willing to engage in
additional services if the court extended reunification services for six months. He said he
continued participating in NA and domestic violence classes. He reported that visits with
Scarlett went well and that Scarlett “genuinely seems disappointed” when the visits end.
He was only permitted twice monthly visits but wanted more time with his daughter. He
said he had family support from his mother and father, and there was room for Scarlett to
be placed in their home with him.
Social worker Pena also testified. She had been assigned to the case in June 2020,
after services had been terminated. She testified Scarlet was attached to her caregiver.
She said father had been visiting consistently the last six months, but she had observed
only one of those visits herself. She had no negative reports concerning the visits.
Pena agreed father’s completion of the Salvation Army program was satisfactory,
and he had not had a positive drug test since then, including hair follicle tests. She agreed
father could show he could maintain sobriety for an additional six months, which would
take him to 20 months total. However, she said she believed granting father’s petition
wasn’t in the child’s best interest because she had been in foster care for 18 months,
mother continued to use drugs, and father had missed four drug test appointments.
The foster mother testified Scarlett had been with her for almost a year, since
February 24, 2020, and reported she called her “mama.” She said Scarlett cried before
visits. She reported they were extremely attached to each other.
F. The Juvenile Court Judge’s Ruling
The judge noted the case had begun because of the parents’ drug use and said they
hadn’t progressed enough by the six-month review hearing to warrant continuing
The judge found father had not had the opportunity to engage in services at the
beginning of the case because of his incarceration and noted father had been proactive in
seeking services after his release and had always been cooperative with the social worker.
She found father a credible witness and found he had successfully completed the
Salvation Army drug treatment program. She found father to be “an individual . . . [who]
has put forth effort, has basically done everything that has been requested of him” and
concluded father had shown a change of circumstances and that it was in the child’s best
interest to provide him with another six months of services.
The judge granted father’s section 388 petition, ordered an additional six months
of reunification services, took the section 366.26 hearing off calendar, and set a review
hearing for August 5, 2021. She also ordered increased father’s visits and drug testing.
On February 23, 2021, minor’s counsel appealed.
ANALYSIS A. Best Interests of the Child
Scarlett argues the trial court erred by granting father’s section 388 petition
because “[n]o evidence showed that the minor’s interest would be served by delaying her
permanent placement in favor of an effort to reunify her” with her father, a person she
Section 388 allows a parent to petition a juvenile court to change, modify, or set
aside any order previously made by the court. (§ 388, subd. (a)(1); In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) The parent must present evidence of showing changed
circumstances and how, in light of those changed circumstances, the requested order
modification will serve the dependent minor’s best interests. (In re Stephanie M., supra,
7 Cal.4th at p. 317.) “[S]ection 388 plays a vital role in preserving due process in
dependency proceedings overall” because “it is only when read in conjunction with the
escape mechanism section 388 procedures create that the limited options available at a
selection and implementation hearing under section 366.26 comply with due process.
Thus, that section 388 provides such an escape mechanism in practice, not just in theory,
is vital to the constitutionality of our dependency scheme as a whole, and the termination
statute, section 366.26, in particular.” (In re J.M. (2020) 50 Cal.App.5th 833, 847
Here, father petitioned the trial judge to change the order terminating reunification
services after six months and setting a section 366.26 hearing. This is an unusual case in
that father made a convincing showing that he had changed his circumstances through
extraordinary efforts to free himself of narcotics and get his life back on track. By the
time he filed his petition, he had completed a six-month in-patient drug treatment
program. By the time the court held a hearing on the issue, after several continuances
requested by mother, the department, and the judge, he had been sober for 11 months,
continued to attend NA meetings, returned negative drug tests, had returned to work, and
had plans to go back to school. While drug addiction is stubborn, father’s success stands
out compared with the general run of such cases. (Cf. In re Kimberly F. (1997) 56
Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a
much longer period than 120 days to show real reform”].) Indeed, Scarlett does not argue
the trial court erred by finding father had changed his circumstances. Instead, her appeal
turns entirely on whether the trial judge abused her discretion when she determined
giving father another chance at reunification was in Scarlett’s best interests.
Scarlett argues no evidence supports the finding and points to evidence that would
support a contrary finding. Most importantly, she says her prospective adoptive parents
had been taking care of her for almost a year and that they had a strong bond. However,
it’s important to emphasize on appeal we don’t “reweigh[] the evidence and substitute[]
[our] judgment for that of the juvenile court.” (In re Stephanie M., supra, 7 Cal.4th at
p. 319.) Instead, we review the trial judge’s decision for abuse of discretion, overturning
the order only if it is arbitrary or without evidentiary support. (Id. at p. 318.) Where there
is conflicting evidence, we reverse only if the evidence compels a finding for the
appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
Many factors are relevant to determining the best interests of the child in ruling on
a section 388 petition. Among those are “(1) [T]he seriousness of the problem which led
to the dependency, and the reason for any continuation of that problem; (2) the strength
of the relative bonds between the dependent children to both parent and caretakers; and
(3) the degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at
Here, in addition to the evidence that Scarlett had bonded with her caretakers,
there was evidence she had bonded with her father. Scarlett “appeared to be very happy
to see her father” at visits, even crying when he left the room then running out after him
and jumping into his arms. She wanted father’s attention and hugs throughout their visits.
She was “very interactive with her father, preferring to sit on his lap while they interact,”
and wanting him to pick her up, and she was “at ease in her interactions with the father.”
In addition, while drug addiction is a stubborn and serious problem, father’s
efforts at addressing them were exemplary and suggested he had actually ameliorated the
problem. This is not a case where father failed to take steps to address his addiction for
18 months and then did so at the last moment, when hope for reunification were all but
dashed. Father did fail to address his addiction initially, but only for the first six-month
review period. When the court then terminated services, he very quickly checked himself
into a drug treatment program at the Salvation Army, where he remained for six months.
The one-year delay until the court held a hearing on father’s section 388 petition had little
to do with father’s conduct, but he did take full advantage of the delay by getting off
drugs, staying off drugs, and gaining full-time employment.
As a result, we must conclude there was a substantial basis for the trial judge to
conclude granting father another chance at reunification with Scarlett was in the child’s
best interest. At minimum, the decision was not arbitrary, and we therefore cannot
conclude the judge abused her discretion.
B. Granting Six More Months of Reunification Services
Scarlett argues the trial judge could not extend services another six months on
February 16, 2021, because doing so would extend services beyond 24 months after
Scarlett was placed in foster care on May 1, 2019. She argues the court could at most
order reunifications services until May 1, 2021.
As Scarlett points out, reunification services are limited in duration. For a child
under three years of age, “services shall be provided for a period of 6 months from the
dispositional hearing . . . but no longer than 12 months from the date the child entered
foster care . . . unless the child is returned to the home of the parent or guardian.”
(§ 361.5, subd. (a)(1)(B).) “If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth” in these provisions, and the
“child is not returned to the custody of a parent or legal guardian at the permanency
hearing,” the judge must either continue the case for up to six months for a permanency
review hearing within 18 months of removal or order a section 366.26 hearing be held
within 120 days. (§ 366.21, subd. (g)(1)-(4).)
Despite these restrictions, a judge may extend services up to 18 months from
removal if “there is a substantial probability that the child will be returned to the physical
custody of the child’s parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.” (§ 361.5, subd.
(a)(3)(A).) And a judge may extend services up to 24 months if “it is in the child’s best
interest to have the time period extended and that there is a substantial probability that the
child will be returned to the physical custody of the child’s parent or guardian . . . within
the extended time period, or that reasonable services have not been provided to the parent
or guardian.” (§ 361.5, subd. (a)(4)(A).)
Scarlett argues the trial judge’s order inappropriately extended services beyond the
24-month window to August 5, 2021. We decline to reverse on this basis. First, the trial
judge had authority to rule on the changed circumstances petition and order additional
reunification services. The minor does not contest that, but objects to the length of time
the order extended services. Second, to the extent there is a problem with ordering
services past May 1, 2021, the issue was forfeited by failure of the minor and the
department to bring it to the attention of the trial judge. (Natkin v. California
Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011 [‘“Appellate courts
are loath to reverse a judgment on grounds that the opposing party did not have an
opportunity to argue and the trial court did not have an opportunity to consider”’].) In
addition, the issue has been mooted by the passage of time. Alerting the trial judge to the
potential issue might have given Scarlett a remedy, but nothing we can do in this court 1 would provide a remedy now. (In re N.S. (2016) 245 Cal.App.4th 53, 59 [“An appellate
1 Scarlett also argues the trial court was required to consider father’s section 388 [footnote continued on next page]
court will dismiss an appeal when an event occurs that renders it impossible for the court
to grant effective relief”].)
We don’t know whether father successfully completed additional reunification
services, cemented his progress in recovery, or suffered a relapse. However, those
questions aren’t before us; they are a proper subject of further inquiry in the juvenile
III
DISPOSITION We affirm the order extending reunification services and remand to the juvenile
court for further proceedings.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. petition under the standard applicable to a request to extend reunification services to 18 or 24 months. Under section 361.5, subdivision (a)(3)(A) and (a)(4)(A), a juvenile court may extend reunification services beyond 12 or 18 months only on a finding that there was a substantial probability that the child would be returned to the parent within the reunification period, or that reinstated services would serve the minor’s best interests. Those provisions aren’t relevant here because father is petitioning for a change of the order terminating his services after the six-month review hearing. In any event, neither the department nor the minor raised this argument in the juvenile court.
AI-generated · verify before citing Holding. The court did not abuse its discretion in granting the father's section 388 petition to extend reunification services, as the father demonstrated changed circumstances through sustained sobriety and consistent engagement in services, and the extension was in the child's best interest.
Issues
Did the trial court abuse its discretion by granting the father's section 388 petition for additional reunification services? Did the trial court err by extending reunification services beyond the 24-month statutory limit? Disposition. Affirmed with directions.
“We conclude the judge did not abuse her discretion by extending services, and therefore affirm.” “She found father to be “an individual . . . [who] has put forth effort, has basically done everything that has been requested of him””