In re J.M. CA4/1

Filed 6/25/21 In re J.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 J.M., et al., Persons Coming
Under the Juvenile Court Law.

D078384
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519556AB)

Plaintiff and Respondent,

v.

Ja.M.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Joanne D. Willis Newton, under appointment by the Court of Appeal,
for Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Lisa M. Maldonado, Deputy County Counsel for Plaintiff and
Respondent.
 INTRODUCTION
J.M. and Ja.M. (the Children) were removed from their mother’s care
due to repeated exposure to domestic violence, nearly four years ago when
they were two years old and two months old, respectively. Now six and four
years old, the children have been in a prospective adoptive home for nearly a
year. Ja.M. (Mother) appeals from juvenile court orders which denied her
petition for return of the Children, pursuant to Welfare and Institutions Code

section 388,1 and terminated her parental rights. She argues the court
abused its discretion by denying the petition and erred in determining the
Children were adoptable. We conclude the court’s rulings were proper and
within its discretion and we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Detention, Jurisdiction, and Disposition
In August 2017, the San Diego County Health and Human Services
Agency (the Agency) filed dependency petitions for the Children following two
domestic violence incidents. (§ 300, subd. (b).) During the first incident, the

Children’s father, R.P. (Father),2 spat on Mother and struck her on the face
with a broomstick, causing her injuries. Father was arrested but, after
getting out of custody, he returned to the home days later and forced his way
into Mother’s bedroom and threatened to kill her. He was arrested again.

1 Further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.

2 Father and Mother’s estranged husband, J.G., are not parties to this
appeal. We discuss them only as needed.

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The Children were present both times. J.M. was two years old and Ja.M. two
months old; we refer to them as the older and younger child, respectively.
The Agency alleged Mother had demonstrated a failure to protect
herself and the Children from physical and emotional harm. Despite the
back-to-back incidents of domestic violence, Mother was initially ambivalent
about getting a restraining order against Father, stating she “ ‘can’t make a
promise’ that she will get one, and that she does not have time.” She later
obtained a restraining order against Father. The Agency noted Mother had
demonstrated “a chronic pattern of domestic violence in her relationships
over the course of the [C]hildren’s life[.]” Mother had a history of domestic
violence with Father, her estranged husband, and another man. Although it
appeared she was mainly the victim of domestic violence, Mother was
reported the aggressor in some instances and was arrested in August 2016
for domestic violence battery against Father.
Mother and Father had a history of referrals to Child Welfare Services
(CWS) dating back to 2015, when the older child was born. In May 2016, at
10 months old, the older child was taken to Polinsky Children’s Center after
the police responded to a report that Father was drunk and arguing with
Mother. Both parents were reportedly homeless, Mother was arrested on
outstanding warrants for misdemeanor charges for possession of a controlled
substance, and Father was determined to be in no condition to care for the
child. The child was briefly detained and returned to the parents a few days
later. There were multiple other referrals up to 2017, when the younger child
was born. The CWS history showed an “on-going history of domestic violence
and risk of emotional abuse to the children.”
Mother immigrated from the Philippines as a young child. She has two
older children from prior relationships, an adult daughter raised by her sister

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from age two and a teenage son adopted by a paternal relative at
approximately age six. Both of these children live outside California and
Mother’s last contact with her now-teenage son occurred in 2012.
At the detention hearing in August 2017, the court detained the
Children, and Mother was given liberal and unsupervised visitation and
reunification services. Because the Children were under three years of age,
pursuant to section 361.5, subdivision (a)(1)(C), the court advised Mother she
had “six months to participate regularly and make substantive progress in
any court-ordered treatment programs or to cooperate or avail . . . herself of
services provided in the case plan, and the failure to do so may result in
termination” of reunification efforts and that after termination of
reunification efforts, “parental rights could be terminated[.]” The court later
repeated this advisal to Mother at another hearing.
In November 2017, the court held a contested adjudication and
disposition hearing. It sustained the petitions as true by clear and
convincing evidence, took jurisdiction over the Children, removed them from
parental custody, and placed them in foster care. At this time, Mother
continued to receive reunification services, had begun attending domestic
violence group and parenting classes, and received unsupervised visitation
with the Children twice a week. The Children were observed to be “healthy
and happy,” but the Agency noted “concerning behaviors” by Mother during
the visits, including her failure to recognize the older child at one visit and
her lack of insight into the needs of the younger infant child. Mother had
difficulty soothing the infant child, who cried uncontrollably during visits,
leading to visits being supervised at the CWS office.
By the time of the six-month review hearing in May 2018, concerns
arose that Mother was still in touch with Father, in violation of the

4
restraining order. CWS had received another referral alleging emotional
abuse, arising from Mother’s report in May 2018 that Father had struck her
with a wooden stick. It was later determined the Children were not present
and although Mother reported the incident occurred, she later denied it
happened. Mother continued with her domestic violence group classes and
after she initially demonstrated that she understood domestic violence
dynamics and their impact on her children, her progress declined when she
lost her housing and was unable to focus in the group classes. The Agency
then referred Mother to individual therapy.
Mother continued visits with the Children three times a week at the
CWS office. She had a visitation coach but did not benefit from it. She would
come late to the appointments, preventing her from receiving help before and
after visitations, and she would “argue against the visitation concepts.” The
coach terminated the sessions due to Mother’s “lack of compliance.” Mother
subsequently made progress and resumed unsupervised visits. During this
time, the Agency noted Mother consistently visited the Children, the younger
child was “doing better with visits” and crying spells started “to lessen,” and
Mother was “observed to provide care for the [C]hildren during the visit[s].”
The Children remained with the same foster care family since their
removal and were doing well. They had been referred for services to address
developmental matters, including speech concerns for the younger child and
emotional issues for both, and both were attending therapy.
II.
Contested 12-Month Review Hearing and Termination of Services
At the six-month review hearing, reunification services were extended
to a 12-month review hearing, which was ultimately held in April
2019⎯approximately 20 months after the Children’s removal from Mother.

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By this time, Mother’s progress had “declined” and the Agency was
recommending the court terminate reunification services. Mother requested
the court return the Children to her, or alternatively continue reunification
services for an additional 60 days to allow the Children to transition into her
home or extend reunification services to a 24-month period. At the 12-month
review hearing, the court received into evidence the Agency’s multiple status
review reports and heard testimony from Mother’s therapist, Elizabeth
Griffith-Tate, and the social worker, LaShawn White, which evidence we
summarize below.
In July 2018, Mother had been arrested for domestic violence battery
against Father. The older child reported to her caregivers that “she had seen
‘mommy and daddy[.]’ ” Because of the additional reports of domestic
violence, Mother’s visits with the Children were again supervised at the CWS
office. In December 2018, the Agency began to transition Mother back to
unsupervised visits with the Children outside the CWS office. However, after
the first unsupervised visit, the older child “returned stating that she was
with the mother and the father and they were in a fight where the mother hit
the father.” On a second visit, Mother did not return the Children at the
designated time and upon return, the older child again told her caregiver that
“she saw the father at the mother’s house.”
In January 2019, CWS received a referral of emotional abuse arising
from a report of domestic violence between the parents with Mother as the
aggressor. The older child reported “ ‘mom and dad fighting.’ ” During
investigation of the referral, the older child “was consistent with her
statements in stating that the mother hit the father while they were in the
store.” Mother, however, denied committing any domestic violence or having
contact with Father. There was no police report of any recent incidents of

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domestic violence and the investigation was closed as “inconclusive.”
However, Mother’s visits were once again supervised at the CWS office
because of concerns that she was continuing to have contact with Father, in
violation of the restraining order.
Mother was initially referred to individual therapy in May 2018 to
address the domestic violence issues, but she did not begin until February
2019. The first referral closed because the therapist did not specialize in
domestic violence treatment and the second referral closed because Mother
declined to participate, stating she was unaware therapy was required. In
February 2019, Mother started individual therapy with Griffith-Tate, who
reported Mother was cooperative. Griffith-Tate could not report to the
Agency whether Mother would follow through with the safety plan they
devised, but later testified she believed Mother could. Griffith-Tate believed
Mother could benefit from additional services to safely reunite with the
Children, but testified she currently did not believe the Children could be
safely returned to Mother. Griffith-Tate also testified Mother told her the
Children “lied” about seeing her with Father or that any domestic violence
had occurred. Griffith-Tate opined that the older child may be experiencing
“re-traumatization,” in which she is describing past incidents of domestic
violence as if they were presently occurring.
In May 2018, Mother had also been referred to a parenting and
visitation program, Incredible Families, because it appeared she had
difficulty understanding the Children’s developmental needs. The initial
referral was closed because Mother was not responding to efforts to schedule
an assessment appointment and she had been arrested in July 2018 for
domestic violence. She was re-referred in November 2018 and later
completed the program, but the program found she rarely responded

7
appropriately to the Children or put their needs ahead of her own, and only
occasionally demonstrated a parental role. Accordingly, although visits
mostly went well, she had trouble assisting the Children and monitoring both
at once, such as when staff alerted her the younger child put a glue stick and
a plastic knife in her mouth and when the older child threw things, yelled,
and wrote on the wall to get her attention. Mother also had difficulty
understanding the older child was “ ‘potty trained’ ” and her yelling at the
child led the child to “bec[o]me scared with her mother when she had to use
the restroom and [she] would cry and urinate on herself.” The Agency
provided Mother with a Tagalog interpreter to remove any language barrier,
but Mother still had difficulty understanding and implementing the
parenting education.
The Children were doing well in foster care and receiving services for
their developmental needs, but the caregiver could not commit to adoption.
Both girls were current on their well-child examinations and “generally
healthy.” The older child had been attending a Head Start program since
July 2018 and was doing well, and the younger child was receiving weekly in-
home infant education. Both children had been referred for speech
evaluation.
After more than 12 months of reunification services, the Agency
determined Mother had not shown an understanding or an ability to put into
practice the concepts of protecting herself and the Children from exposure to
domestic violence and responding to the Children’s developmental needs.
The Agency was concerned that “[M]other will continue to have contact with
the father and will place herself and her children in significant harm” and
she continued to “struggle[ ] in her visitation with the [C]hildren.” It did not

8
believe Mother could safely reunify with the Children and recommended
services be terminated.
At the conclusion of the evidence, the court found the Children were not
ready to return to Mother and she was not ready to “receive them safely into
her home,” and it was not in the Children’s best interests to continue
reunification services. The court noted Mother had failed to take advantage
of services “until quite recently,” and “[m]ore alarmingly than the failure to
handle the children perfectly at every interaction is the continued contact
between [Mother and Father] who, . . . the [c]ourt just noted, . . . [is] a danger
to [Mother] and to the children.” In so finding, the court believed the older
child’s statements of seeing Mother and Father together on at least two
occasions and Mother hitting Father on one of those occasions, and rejected
Griffith-Tate’s opinion that the child’s statements were a result of “re-
traumatization.” Accordingly, the court found by clear and convincing
evidence the Agency had met its legal burden and terminated reunification
services, and set the matter for a section 366.26 hearing to determine a
permanent plan for the Children.
III.
Contested Sections 388 and 366.26 Hearing
In July 2019, the Agency filed its section 366.26 report, authored by
social worker Naomi Miller-Wave, and recommended the court terminate
Mother’s parental rights and order a permanent plan of adoption for the
Children. The Agency believed the recommendation was in the Children’s
best interests, explaining they were accustomed to depending on others and
did not view Mother in a parental role, and it determined the Children were
“highly adoptable.”

9
 In September 2019, Mother filed a section 388 petition for return of the
Children with family maintenance services, or alternatively for additional
reunification services with expanded visitation. She argued there was a
change in circumstances, including that she had continued therapy, “gained
valuable insight into how domestic violence has impacted her children,” and
could now safely parent them; she had secured a job, reconnected with a
support network, and has not had contact with Father. Mother also argued
return was in the Children’s best interests because they could “continue to
develop a loving and parental bond[.]” The Agency opposed Mother’s request.
In late September 2019, the court found Mother had made a prima
facie showing on her section 388 petition to warrant a hearing and set the
petition to be heard with the contested section 366.26 hearing. But the
hearing was not heard until December 2020, after several continuances were
granted to allow the Agency to further explore the Children’s adoptability
and placement with maternal relatives and further delays were caused by the
COVID-19 pandemic shutdown of court services beginning in March 2020.
A. Summary of Evidence
At the hearing, the court admitted into evidence the Agency’s section
366.26 report and multiple subsequent addendum reports and Mother’s
exhibits, which included visitation logs and Mother’s letter to the court
discussing her progress, her love for the girls, and how she wants them back
because they “give [her] a greater purpose[.]” Griffith-Tate and Miller-Wave
testified. We summarize the evidence received by the court below.
1. The Agency’s Reports
Mother’s Visits with the Children. Since reunification services were
terminated in April 2019, Mother continued to have supervised visits with
the Children. In March 2020, due to the COVID-19 pandemic, the visits went

10
to video and telephone contact. In-person visits resumed in July 2020. The
Agency observed that Mother’s visits were “overall consistent” but “the
quality of visitation [was] lacking, with the girls frequently stating that they
do not want to go to their visits and requesting to end visitation early.”
During visits, the Children would at times greet Mother with a hug, but
frequently rejected her affection, including thwarting her kisses, touches and
hugs and telling her, “Mommy I don’t love you.” The Agency noted that
Mother “continue[d] to have difficulty in managing the [Children’s] behavior
during visitation and modulating her own reactions to the [Children’s]
emotions to determine what they need at any given moment.”
Mother also had conflicts with the visitation monitors, including yelling
at them when they tried to help. At one visit, a social worker had to
“physically intercept [a] situation to deescalate” Mother’s interaction with the
older child. When Mother continued to yell at the child, the social worker
ended the visit and Mother called her a “bitch.” Visits “continued to
deteriorate.” In October 2020, Mother was banned from the family visitation
center, after she yelled and swore at a visitation monitor. When the monitor
ended the visit, Mother continued yelling and scratched the monitor’s hand
as she lunged to hug and kiss the Children goodbye.
Mother then had supervised video and telephone visits with the
Children. The older child increasingly said she did not want to talk to
Mother and told the social worker she was not her “mommy anymore.” In-
person visits resumed in December 2020 and while the Children would
occasionally still greet Mother with a hug and call her “ ‘Mommy,’ ” they
continued rejecting her affection.
Children’s Prospective Adoptive Caregivers. In July 2020, the Children
were placed with new caregivers who had committed to adopting them. The

11
Children had in-person and video visits with their new caregivers to help
transition them into the new home. After one visit, the Children,
unprompted, began calling their new caregivers “Mommy” and “Daddy.” At a
visit with Mother, the older child sat at a picnic table cross-legged with her
hands in a prayer position and when the social worker asked what she was
doing, the child said “she was praying to go home to see her daddy,” referring
to her new male caregiver. Another time, the older child told Miller-Wave
that “ ‘I didn’t have a mom and dad [before placement with her new
caregivers] and now I do.’ ” During her visits to the new caregivers’ home,
Miller-Wave saw the Children were “happy,” “seeking the caregivers out for
comfort and attention,” and “adjusting well.” Both children expressed that
they “ ‘love[d]’ ” their new caregivers.
Children’s Developmental Progress. At the time of the hearing, the
older child was five years old and the younger child three years old. Both had
experienced some developmental delays, were clients of the Regional Center,
were receiving speech therapies and had attended behavioral therapy with
Rady Children’s Hospital KidSTART clinic. But over the course of the
reporting period from April 2019, both children made substantial progress,
including completing speech therapy and behavioral therapy. Since
placement with their new caregivers, Miller-Wave had also “noticed a marked
increase in [the younger child’s] speech” and both children had adjusted well
and “shown tremendous developmental progress.” The older child had also
become a “nurturing big sister” to the younger child.
Earlier, in January 2019, concerns arose that the younger child was
showing signs of being at risk for autism and she was referred for a
comprehensive evaluation. She was evaluated in August 2020 and
determined “not fully autistic,” showing “only . . . a portion of the autism

12
criteria in speech and language.” The examining doctor recommended she
attend preschool to improve her socialization, speech and language skills and
obtain a referral for speech therapy. She began preschool in the Fall of 2020.
By the time of the hearing, the new caregivers reported she was “talking
much more,” speaking in “4 word sentences” “count[ing] to 10” and was “fully
potty-trained.”
The older child began her second year in a Head Start program with an
individualized education program (IEP) under a qualifying disability of
speech impairment, but she no longer required an IEP by January 2020 and
had completed preschool. She was earlier diagnosed with attention deficit
hyperactivity disorder (ADHD) and prescribed psychotropic medicine, but
never took it due to Mother’s opposition and reservations by her preschool
teacher. By the time of the hearing, the new caregivers reported they had no
concerns with the child’s attention or schoolwork in the home or at school and
did not believe she required further intervention at the time. She started
Kindergarten in the Fall of 2020 and was going to be evaluated for any
further IEP need. Her teacher reported she “loves school” and is at the “top
of her class.” The new caregivers had also hired a tutor to help her with
schoolwork. The Agency found the current interventions sufficient.
Although both girls had met their therapeutic goals by the time of the
hearing, their therapist “thought it would be a good idea to expand emotional
therapy and have [them] receive therapy sessions through KidStart again.”
At the time, they were on a waitlist.
Mother’s Progress. Since reunification services were terminated in
April 2019, Mother was making progress in her own life and was continuing
therapy with Griffith-Tate. She had enrolled in a certified nursing assistant
(CNA) certificate program and completed a clinical internship for her CNA

13
program by August 2020. At the time of the hearing, Mother was employed
full-time at a health facility and living in a single occupancy residence and
she was paying her full rent. Griffith-Tate reported to the Agency that
Mother was “very strong, has insight, and has shown growth,” and she
believed Mother had met her therapeutic goals and would be able to safely
care for the children.
Domestic Violence. In one joint therapy session with Mother and the
children, the older child told the therapist she had seen domestic violence
between Mother and Father, but Mother responded, “ ‘that didn’t happen,
don’t say that!’ ” The therapist discontinued the joint therapy sessions as “it
was not a safe place for [the older child] to share and express her feelings on
what she had seen.” On another occasion, the therapist observed the older
child exhibit a “fear-response where she was crying when she saw [Mother].”
Mother claimed she no longer had contact with Father.
Adoptability. The Agency determined both Children were specifically
adoptable as a sibling set as they currently lived with approved caregivers
who were committed to adopting them. The Agency also determined both
Children were generally adoptable as a sibling set “as there are several San
Diego Resource families approved to adopt children with similar
characteristics to the girls, including their sweet and energetic personalities,
their . . . ethnicity, good health, with history of paternal mental health and
drug abuse, as well as some developmental delays.” “The Agency [was]
confident that they would be able to find an adoptive home for the girls if
they needed to be removed from their current placement.”
2. Miller-Wave’s Testimony
Miller-Wave testified she had no reason to believe that Mother has had
contact with Father “within the last six months to a year,” but noted Father

14
had been incarcerated “for the majority of the past year” and believed he was
released only a month ago. She acknowledged she had no information that
Mother has engaged in any “new domestic violence situations or
relationships” and Mother had completed her domestic violence group classes.
Miller-Wave acknowledged Mother had a support system of family who
resided outside of San Diego; she had been attending church and had gained
a support network through her church community; she had completed and
received a certificate for parenting education; she was consistent in her
visitation with the Children; and she was gainfully employed and working
with her housing coordinator to obtain housing that would allow the Children
to live with her.
Still, Miller-Wave testified the risk of harm to the Children if they
returned to Mother was “[h]igh.” She cited Mother’s difficulty in providing “a
structured environment and setting a tone in a parental role” for the
Children, as they “don’t often listen to her”; Mother’s escalation in reactions
in the Children’s presence which “can cause confusion and stress” for them
and impact their sense of safety and emotional safety, as well as impact
Mother’s ability to obtain services for them. She also cited the fact that the
Children have now resided more than three years outside of Mother’s care
and “[b]ecause they have spent more of their lives out of her care than in her
care, . . . it could be traumatic at this point for them to be returned to
[Mother].” Finally, Miller-Wave also testified the Children wanted to be
adopted, with the older child stating she does not want to live with or visit
with Mother.
Miller-Wave testified the older child currently only requires emotional
therapy and both girls had intake appointments to restart KidSTART
therapy. The younger child was scratching herself and the current caregivers

15
were using gloves to mitigate the problem and consulting with service
providers. She indicated the younger child needed to be re-evaluated for
physical therapy and specific language therapy or applied behavioral analysis
(ABA) therapy. However, she believed the child had made progress on the
scratching and may have stopped the behavior.
She also testified that although the Agency has discretion to expand
Mother’s visitations pending the section 366.26 hearing, it did not because
the permanent plan was for adoption. She explained that once reunification
services are terminated, the Agency follows the court’s recommendations
regarding visitation. In January 2020, the court had denied Mother’s request
for unsupervised visits.
3. Griffith-Tate’s Testimony
Griffith-Tate opined Mother could safely care for the girls. When asked
to explain Mother’s understanding of how domestic violence impacted the
Children, Griffith-Tate testified Mother understood “[t]he impact has
separated her children from them . . . having the mother-daughter
relationship and feeling safe.” Griffith-Tate was aware the older child said
she did not want to visit Mother and both children pushed Mother away, but
she explained there are “adjustment periods” and “transitional period[s]” and
the Children were “young enough to sustain that and be able to work through
that, . . . especially with the support of family therapy from a child specialist.”
Griffith-Tate conceded she had never observed a visit between Mother and
the Children, and her assessment of Mother was based on her self-reports.
Griffith-Tate testified Mother “demonstrated the ability to listen and
not be so reactive” after attending therapy. She questioned why Mother had
not been referred to therapy earlier, but also acknowledged that Mother
calling the Agency “fucking liars” at a July 2020 placement meeting showed

16
poor emotional regulation. She further testified the Agency staff
misinterpreted Mother due to her mannerisms and reactions, which she
attributed to cultural norms.
B. Juvenile Court’s Rulings
The court denied Mother’s section 388 petition for return of the
Children to her or alternatively for continued reunification services. It found
Mother demonstrated changed circumstances, based on her lack of contact
with Father, completion of a domestic violence treatment program, parenting
classes, and more than a year of individual therapy, and her success in
obtaining housing, graduating from a nursing program, and strengthening
family and community ties.
Although “commend[ing] [Mother] for her hard work,” the court
determined it was not in the Children’s best interests for them to return to
Mother or for the court to continue reunification services. It noted Mother
had “maintained her destructive relationship with [Father],” whom the court
found to be “unpredictable, aggressive, and violent, troubled by mental health
and substance abuse issues and engaged in a criminal lifestyle,” despite her
participation in services and the restraining order. It noted Mother was also
arrested for domestic violence against Father and, even without the older
child’s statements that Mother allowed Father to be present at visits, the
arrest demonstrated Mother was still in a relationship with Father as of the
summer of 2018.
The court found Mother had not parented the Children in three years,
since the older child was two years old and the younger child two months old.
Although Mother consistently visited and called the Children, the court found
visits “always presented some concern.” It noted her difficulty managing
both children and trying to comfort the younger one, and that visits

17
deteriorated further after the adoptive placement “with the children being
more resistant,” which the court found reasonably reflected their desire for a
permanent home and their “more emphatic[ ]” rejection of time with Mother.
The court also found the Children had made “great progress with
developmental and mental health services.”
Focusing on the older child, the court found she was “thriving and
happy in her current home and wants to be adopted.” She has stated her
“unambiguous wish” to stay with her caregivers and “it would be detrimental
to her” for the court to remove her from that home. The court also found the
older child’s relationship with Mother tense, as the child “has been very clear
that she does not enjoy the visits” with Mother, perhaps because she has
“endured longer exposure to her biological parents’ violent relationship” and
was “called a liar” by Mother at therapy when she tried to discuss the
domestic violence she saw.
The court found the younger child presented a “closer call,” and noted
there were similarities to the circumstances in In re J.M. (2020) 50
Cal.App.5th 833 (J.M.), where a child was removed in infancy due to
domestic violence between his parents and the mother “eventually, but not
immediately” ended the relationship and later “had sufficiently addressed the
underlying protective issue in the case.” The court noted the appellate court
had found in that case the trial court had abused its discretion by not
returning the child to mother’s care. The court specifically considered the
similar circumstances and weighed whether it would be in the younger child’s
best interest to return only her and “give her the chance to be raised by her
biological mother.”
The court acknowledged many of the Agency’s concerns regarding the
younger child “have more to do with the appropriateness of [Mother’s]

18
interactions with Agency employees and her elevated voice with her children
than with threats to the children’s safety.” It also acknowledged Mother’s
“fraught” relationship with the Agency and Griffith-Tate’s testimony that
Mother’s “loudness and over-protectiveness may be misinterpreted as
harmful when they were not,” and further allowed that Mother’s reaction at
the July 2020 placement meeting may have been because Mother “was not
adequately prepared to hear the discussion” about the Children’s adoption.
However, the court noted “the fact remains” that Mother “totally lacks
insight into the damage that domestic violence has caused her children or
could cause in the future” and “[s]he is also in denial about her own role in
the current dependency case.” The court found that Griffith-Tate, despite
being Mother’s “fierce advocate,” “was unable to point out anything that
[Mother] had said about the impact of domestic violence on the girls other
than it separated them from their mother and may have made them unsafe,
despite completing a domestic violence group and despite [Mother] being in
therapy for over a year.” Further, the court found Mother’s letter devoid of
any “recognition” of “how her behavior has negatively impacted her children,”
as it appears she “still believe[d] that she did nothing wrong” and that she
has been “a victim of the Agency.”
The court concluded “[m]ore importantly” that returning the younger
child would mean “severing [her] from [her sister,] the only consistent
relationship she has had in her young life” and noting the sisters “have never
been separated” and “[a]ll of [the younger child’s] experiences have been
shared with [her sister].” The court concluded “the benefits of preserving
their relationship are profound.” The court “weighed the sure benefit to [the
younger child] of staying in a stable and loving adoptive home” with her
sister “who forcefully states that she wants to be adopted, versus the tenuous

19
benefit of being returned to her mother, who had never parented her, [and]
where placement may fail[.]” In the balance, the court concluded Mother had
not met her burden of proving that return of the younger child would be in
her best interests. It accordingly denied Mother’s section 388 petition.
Finally, the court found by clear and convincing evidence that the
Children were both specifically and generally adoptable, and no exception to
adoption, including the parent-child bond exception, applied. The court
terminated Mother’s parental rights and set a permanent plan of adoption.
Mother appealed.
DISCUSSION
I.
No Abuse of Discretion in Denial of Section 388 Petition for Modification
Mother argues the juvenile court abused its discretion when it denied
her petition for modification and return of the Children to her with family
maintenance services, or alternatively for additional reunification services
with expanded visitation.
Under section 388, “[a]ny parent or other person having an interest in a
child who is a dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court . . . to change,
modify, or set aside any order of [the] court previously made[.]” (§ 388, subd.
(a)(1).) “At a hearing on a motion for a change of placement, the burden of
proof is on the moving party to show by a preponderance of the evidence that
there is new evidence or that there are changed circumstances that make a
change of placement in the best interests of the child.” (In re Stephanie M.
(1994) 7 Cal.4th 295, 317 (Stephanie M.).)
“After the termination of reunification services, the parents’ interest in
the care, custody and companionship of the child are no longer paramount.

20
Rather, at this point, ‘the focus shifts to the needs of the child for permanency
and stability’ [citations], and in fact, there is a rebuttable presumption that
continued foster care is in the best interests of the child.” (Stephanie M.,
supra, 7 Cal.4th at p. 317, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309
(Marilyn H.).) “A court hearing a motion for change of placement at this
stage of the proceedings must recognize this shift of focus in determining the
ultimate question before it, that is, the best interests of the child.”
(Stephanie M., supra, at p. 317.) Therefore, a petitioner at this stage “must
establish how such a change will advance the child’s need for permanency
and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).)
We review a juvenile court’s decision to deny a section 388 petition for
abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) “This
determination [is] committed to the sound discretion of the juvenile court,
and [its] ruling should not be disturbed on appeal unless an abuse of
discretion is clearly established.” (Ibid.) “[W]hen a court has made a custody
determination in a dependency proceeding, ‘ “a reviewing court will not
disturb that decision unless the [juvenile] court has exceeded the limits of
legal discretion by making an arbitrary, capricious, or patently absurd
determination [citations].” ’ ” (Ibid.) “ ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
[juvenile] court.” ’ ” (Id. at pp. 318–319.)
On the record before us, we conclude the court reasonably determined
that returning the Children to Mother was not in their best interests and

21
properly denied Mother’s section 388 petition.3 We agree there is no doubt
Mother loves the Children and she has made commendable progress in
securing education, work, and housing, but those facts are not dispositive of
the Children’s best interests. At the time she filed her section 388 petition in
September 2019, reunification services had ended months earlier, and the
Children’s need for permanency and stability became the paramount concern.
(Stephanie M., supra, 7 Cal.4th at p. 317–318.) By the hearing in December
2020, the Children had been out of Mother’s care for over three years, and in
their prospective adoptive home for five months and doing well there.
Returning the Children to Mother would have disrupted the
permanency and stability they had finally found, after years in foster care.
The older child especially was “thriving and happy in her current home and
wants to be adopted,” and she “unambiguous[ly] wish[ed]” to stay with her
caregivers. In contrast, she had a difficult history and relationship with
Mother, and made it “very clear” she did not enjoy visits and did not want to
reside with Mother. The evidence also called into question Mother’s ability to
provide a stable and safe home. She had difficulty managing the Children
and acting in a parental role during visits, despite consistent visitation. She
lacked insight into the impact of domestic violence on them and her role in
creating the harmful situation, even after nearly 20 months of reunification
services and even accounting for her strained interactions with the Agency.

3 Mother contends the constitutional nature of her right to the Children’s
custody must be considered. The dependency system already balances her
interests with those of the Children. (Marilyn H., supra, 5 Cal.4th at p. 306;
Id. at p. 309 [§ 388 “provides the ‘escape mechanism’ . . . to allow the court to
consider new information”]; see In re Angel B. (2002) 97 Cal.App.4th 454, 461
[§ 388 statutory scheme is “constitutional because of its many safeguards”].)

22
We agree with the court that removing the older child from her stable home
environment would be detrimental to her.
While the court viewed the younger child’s case as a “closer call,” we
conclude the court properly evaluated the evidence, placing particular weight
on the devastating impact of separating the siblings, and its determination
that it would also not be in the younger child’s best interests to be returned to
Mother was well within the bounds of reason. As the court aptly noted, “the
benefits of preserving [the siblings’] relationship are profound,” as they have
been each other’s constant through all the turmoil. Indeed, the record
reflects the older child became a “nurturing big sister” to the younger one.
Although the court noted some similarities with J.M., we find the case
distinguishable, and we reject Mother’s reliance upon it. (J.M., supra, 50
Cal.App.5th at p. 837 [reversing denial of § 388 petition for minor removed in
infancy due to domestic violence].) Although the mother in J.M. similarly
made belated progress addressing domestic violence, the parental
relationship with the child in J.M. was far different than the one before us.
(Id. at p. 846.) There, the mother had evidence, including from the social
services agency, that she was ready and able to care for the child and their
relationship was “blossoming.” (Id. at pp. 838–840, 849.) Those are not the
facts here. Miller-Wave, the Children’s adoption case worker for over a year
and a half and who had personally observed at least 15 visits with Mother,
believed there was a high risk of harm to the Children, including the younger
child, if they were returned to Mother. There was evidence that Mother had
difficulty comforting the younger child, who at the time of the hearing
referred to her current caregivers as “Mommy” and “Daddy” and still
sometimes rejected Mother’s affection.

23
 Further still, it was noted in J.M. that return of the child could provide
him with the benefit of extended family. (J.M., supra, 50 Cal.App.5th at pp.
843, 849 [mother’s brothers and paternal grandmother could offer minor “an
extended biological family, with whom [he] could remain connected”; mother
testified grandmother agreed to help with childcare].) Here, returning the
younger child to Mother without her older sister meant disrupting her only
existing familial bond, and there was no benefit of Mother’s extended family
to speak of because the Children had not met Mother’s teenage son, only the
older child had met Mother’s adult daughter (only once), and both older
siblings lived outside of California. (Compare J.M., at p. 849; cf. In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529–530 (Kimberly F.) [noting
interest in preserving existing family unit].)
Mother’s reliance on the factors set forth in Kimberly F. is also
unhelpful. The Kimberly F. court criticized a best interests assessment that
consisted of simply comparing the households of the biological and adoptive
parents, and identified three nonexclusive factors to determine best interests:
“(1) The seriousness of the problem which led to the dependency, and the
reason for any continuation of that problem; (2) the strength of 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.” (Kimberly F., supra, 56 Cal.App.4th at
pp. 530–532.) Courts of Appeal have declined to apply these factors because
they do not focus on permanency and stability, as required by the high court’s
decision in Stephanie M.—but some, like J.M., have embraced them again, at
least as part of a larger analysis. (Compare J.C., supra, 226 Cal.App.4th at
p. 527 [declining to apply Kimberly F. factors, as they did not take Stephanie
M. analysis into account]; cf. In re K.L. (2016) 248 Cal.App.4th 52, 62

24
[focusing on permanency and stability]; with J.M., supra, 50 Cal.App.5th at
p. 848; In re I.B. (2020) 53 Cal.App.5th 133, 163 [same court that issued J.C.
held trial court did not err by using Kimberly F. factors as part of “holistic
evaluation”; explaining they did not apply factors in J.C. because mother
there “failed to address the more important concepts of permanency and
stability” under Stephanie M., whereas mother at issue showed she could
“immediately provide . . . a permanent and stable home”].)
We do not need to take a position on the viability of the Kimberly F.
factors in this appeal, because even if they apply, they do not aid Mother.
First, regarding the seriousness of the problem which led to the
dependency, Mother acknowledges the domestic violence problem was serious
and she was slow to address it. However, she disputes there is any reason for
the problem to continue, citing Griffith-Tate’s testimony that she had met her
therapeutic goals and Miller-Wave’s testimony that she does not believe
Mother is in contact with Father. But as the juvenile court observed,
Griffith-Tate could not identify any real insight by Mother into the impact of
domestic violence on the Children and Miller-Wave believed it was not in the
Children’s best interest for them to return to Mother as it posed a “high” risk,
including because her escalated reactions could impede the Children
receiving services if the need arose. Moreover, we note Miller-Wave’s
observation that Father was incarcerated for the “majority of the past year”
and she believed he was released only a month before the hearing, which
could in part explain the absence of any reoccurrence of domestic violence in
2020.
Second, regarding the strength of relative bonds between the
dependent children to both parent and caregivers, Mother argues the
Children’s relationship with her was “more significant,” as she was a

25
constant presence in their lives, and the visitation logs reflected positive
interactions and bonding. In contrast, she claims, the Children were only
with the caregivers a short time and calling them “Mommy” and “Daddy” so

soon showed attachment disorder.4 Mother ignores, however, the evidence
that the Children did not see her in a parental role, they had mixed and
negative interactions with her at visits, and they were doing well with the
caregivers. At the time of the hearing, the Children were still calling their
caregivers “Mommy” and “Daddy” and sought them for comfort. Mother
essentially asks us to reweigh the evidence, which we may not do. (See
Stephanie M., supra, 7 Cal.4th at p. 319.)
Mother also suggests certain issues were not adequately addressed by
the Agency or juvenile court, including why the Children rejected her
affection, the in-person visitation gap during the pandemic, and the benefit of
her extended family. The Agency reports were adequate, as we discuss post,
and the court sufficiently addressed these issues. Further, we presume the
court performed its regular duty and considered these matters to the extent
relevant. (Evid. Code, § 664; see In re Julian R. (2009) 47 Cal.4th 487, 498–
499.)
As to the third factor, the ease of resolving the removal issue, Mother
argues she has made extensive changes and Griffith-Tate explained Mother
did not make these changes sooner because of barriers from cultural norms
and Mother was belatedly offered therapy. But part of the court’s concern
was that Mother had received services like counseling, and still she did not

4 We note Mother cites no record or legal support for her claim about
attachment disorder. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 [“ ‘ “When
an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as
waived.” ’ ”].)

26
have meaningful insight into the domestic violence issue that led to the
dependency. The court specifically considered that “[t]he reunification social
worker . . . noted that in her 22 years as a social worker, she had never put in
place as many supports and services as she had for [Mother], but she was still
worried about the [Children’s] safety in their mother’s care.” Moreover,
Mother does not explain how increased attention to her cultural background
or earlier counseling would have mitigated this concern. We also note the
Agency provided Mother with a Tagalog interpreter for her participation in
parenting education to remove any such barrier.
Finally, Mother argues the Agency’s decision to not expand visits after
she filed her section 388 petition, was “perhaps the most significant barrier”
to being in a stronger position to seek return or more services. But the
problem was not the amount of visitation, but the quality. Mother had
difficulty interacting with the Children well before reunification services
were terminated and this did not improve over time.
In sum, we conclude the juvenile court did not abuse its discretion in
denying Mother’s section 388 petition.
II.
Substantial Evidence Supported Juvenile Court’s Finding of Adoptability
Mother argues the juvenile court erred in terminating her parental
rights because there was not substantial evidence to support its finding that
the Children were generally and specifically adoptable.
“The court may terminate parental rights ‘only if it determines by clear
and convincing evidence that it is likely that the minor will be adopted.’ ”
(Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249 (Cynthia D.), quoting
§ 366.22, subd. (c)(1).) “If the court so determines, the findings, ‘pursuant to
Section 366.21 or Section 366.22, that a minor cannot or should not be

27
returned to his or her parent . . ., shall then constitute a sufficient basis for
termination of parental rights unless the court finds that termination would
be detrimental to the minor’ due to any of certain specified circumstances.
(§ 366.26, subd. (c).)” (Cynthia D., at p. 249.) “Thus, in order to terminate
parental rights, the court need only make two findings: (1) that there is clear
and convincing evidence that the minor will be adopted; and (2) that there
has been a previous determination that reunification services shall be
terminated.” (Id. at pp. 249−250.)
“The question of adoptability usually focuses on whether the child’s
age, physical condition and emotional health make it difficult to find a person
willing to adopt that child.” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13
(Valerie W.).) “If the child is considered generally adoptable, we do not
examine the suitability of the prospective adoptive home.” (Ibid.) Moreover,
“it is not necessary that the minor already be in a potential adoptive home,”
but the fact that one exists is evidence that “the minor’s age, physical
condition, mental state, and other matters relating to the child are not likely
to dissuade individuals from adopting the minor.” (In re Sarah M. (1994) 22
Cal.App.4th 1642, 1649–1650.)
“On review, we determine whether the record contains substantial
evidence from which the juvenile court could find clear and convincing
evidence that the child was likely to be adopted within a reasonable time.”
(Valerie W., supra, 162 Cal.App.4th at p. 13.) “The evidence must be
sufficiently strong to command the unhesitating assent of every reasonable
mind.” (Ibid.) “We give the court’s adoptability finding the benefit of every
reasonable inference and resolve any evidentiary conflicts in favor of the
judgment.” (Ibid.) Even though “a finding of adoptability must be supported
by clear and convincing evidence, it is nevertheless a low threshold: The

28
court must merely determine that it is ‘likely’ that the child will be adopted
within a reasonable time.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
We conclude there was substantial evidence from which the juvenile
court could find by clear and convincing evidence that the Children were
generally and specifically adoptable. The Agency’s section 366.26 report
identified them as “highly adoptable,” described the characteristics that made
them generally adoptable, including age and demeanor, and stated there
were families willing to adopt children with some developmental and mental
health issues. The Children were later placed with their prospective adoptive
parents, and had been doing well in the new home for five months as of the
section 366.26 hearing. The older child was excelling in school, despite her
ADHD diagnosis, and although the younger child had more substantive
development issues, the caregivers were aware of and addressing them. (See,
e.g., In re Helen W. (2007) 150 Cal.App.4th 71, 79–80 [foster mother was
aware of minors’ conditions, including autism spectrum disorder, possible
bipolar disorder, and motor skill delays, and willing to adopt].) The record
thus provides ample evidence that the Children were likely to be adopted
within a reasonable time.
Mother’s arguments do not compel a different result. Her primary
contention is that the Agency reports “did not adequately address the minors’
mental and emotional status as required by section 366.21(i)(1)(C),” and that
such omissions were not harmless. The Agency argues she forfeited any
objection to the sufficiency of the reports by not raising it below, and this
position has force. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 411
[failure to “object[ ] to the sufficiency of the assessment reports” waives issue
on appeal]; In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [forfeiting
adequacy of adoption assessment by not raising issue below]; compare Valerie

29
W., supra, 162 Cal.App.4th at p. 7 [parties raised adequacy of Agency’s
assessment in superior court].)
However, even if we reached Mother’s objection, we would reject it.
When a case is set for a section 366.26 hearing, the Agency prepares an
assessment on various issues, including the child’s relationship with any
identified prospective adoptive parents and the likelihood of adoption.
(§ 366.21, subd. (i) [hearing set from six or 12 month review].) Pertinent
here, the assessment must include “[a]n evaluation of the child’s medical,
developmental, scholastic, mental, and emotional status.” (§ 366.21, subd.
(i)(1)(C).) The Agency’s reports adequately addressed the required topics,
including by describing the Children’s diagnoses, services, and progress. The
reports therefore fulfilled the statutory requirements and, with the evidence
at the hearing, provided substantial evidence for adoptability. (In re John F.
(1994) 27 Cal.App.4th 1365, 1378 [“[s]ubstantial compliance with the
assessment provisions has been deemed enough”].)
Mother maintains the Children have “significant and unresolved
behavioral and mental health issues,” and the Agency reports omit
“information from the minors’ therapists or their mental health
assessments,” including current information. Her reliance on Valerie W. here
is misplaced. One of the children in Valerie W. was going to be “tested for a
serious genetic or neurological disorder,” but the reports did not address the
results or his most recent pediatric visit. (Valerie W., supra, 162 Cal.App.4th
at pp. 6, 14 [inadequate assessment undermined adoptability finding].) Here,
Mother does not establish the Children had a comparable condition for which
information was lacking and which could impact adoptability. She contends
the court did not have the KidSTART therapy intake interview and questions
why the social worker did not consult the therapist about the adoptive

30
placement. There is, however, no indication a specific issue spurred the
therapy referral. Rather, the evidence is that the therapist felt it was “a good
idea to expand emotional therapy,” which was reasonable given the
Children’s tender ages and experiences to date. The other pending
evaluations were for known issues already being addressed, like the younger
child’s scratching and other behaviors, or for screening purposes, such as to
see if the older child still needed an IEP. Valerie W. is distinguishable in
other respects, too; unlike here, the report was the only evidence at the
section 366.26 hearing and there were questions about the prospective
adoptive parents. (See Valerie W., supra, 162 Cal.App.4th at pp. 7, 13–15.)
We also disagree with Mother that the purported error would not be
harmless. In re Michael G. (2012) 203 Cal.App.4th 580 is instructive. The
court ordered a psychological evaluation for a defiant and aggressive child
who had been in a stable foster home for just three months, but ruled he was
adoptable without the evaluation results or an updated therapist report. (Id.
at pp. 590–591.) The appellate court held the error was harmless, given the
other evidence in the record. (Id. at p. 591.) Among other things, the child’s
issues diminished with his caregiver, showing an adoptive parent could
manage them, and neither his caregiver nor his teacher reported significant
problems. (Id. at pp. 592–593.) The lack of prejudice is even clearer here.
The Children’s issues do not implicate a similar risk of harm⎯there was no
similarly significant evaluation pending and, as discussed ante, there was
ample other evidence to support adoptability, including the Children’s

31
current placement with adoptive parents who are already attending to their

needs.5
To the extent Mother’s arguments go to the sufficiency of the evidence,
they still lack merit. For example, she asserts the Children have significant,
unresolved issues, but discusses their entire developmental history, including
now-resolved concerns like the older child’s speech impediment, and ignores
accomplishments like her being at the top of her class. For the issues that
may persist, like the younger child’s scratching habit, she also fails to
acknowledge the significance of the caregivers’ awareness and efforts to help.
In other words, Mother magnifies the Children’s challenges but minimizes
their progress, even though substantial evidence review requires drawing
inferences in favor of the judgment. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1011–1012.)
We conclude the juvenile court did not err in finding the Children were
adoptable and terminating Mother’s parental rights.

5 Other cases cited by Mother here are distinguishable, and do not aid
her. (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 [insufficient
evidence where, inter alia, adoptability was based on caregiver’s desire to
adopt and there were gaps in his criminal and child welfare history]; In re
B.D. (2008) 159 Cal.App.4th 1218, 1233 [criticizing adoptability findings for
five siblings, where three had developmental problems and there was no prior
relationship with family seeking to adopt them, but affirming based on
postjudgment evidence that minors were in prospective adoptive home].)

32
 DISPOSITION
The orders are affirmed.

DO, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.

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