IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

In re KAYLEE S., et al., ) Appeal No. E072044

)
Persons Coming Under )
The Juvenile Court Law. ) Superior Court
) No. RIJ1701026
RIVERSIDE COUNTY )
DEPARTMENT OF PUBLIC SOCIAL )
SERVICES, )
)
Petitioner and Respondent, )
)
v. )
)
KARI H. (mother), )
)
Objector and Appellant. )
)

APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT

OF RIVERSIDE COUNTY, JUVENILE COURT

Honorable Matthew C. Perantoni, Judge

APPELLANT'S REPLY BRIEF

JOSEPH T. TAVANO, ESQ.

State Bar No. 147240
4364 Bonita Road, #121
Bonita, CA 91902-1421
(619) 271-1244
jtavano@cox.net
Attorney for Appellant Kari H.
By appointment of the Court of Appeal
under the Appellate Defenders Inc.
Independent case system
 TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE EVIDENCE SHOWED A CHANGE OF

CIRCUMSTANCES AND THAT IT WAS IN THE
CHILDREN’S BEST INTEREST TO GRANT MOTHER’S
REQUEST FOR ADDITIONAL TIME TO
REUNIFY WITH HER CHILDREN.. . . . . . . . . . . . . . . . . . . . . . . . 5

II. THE JUVENILE COURT ABUSED ITS DISCRETION

IN NOT FINDING THE BENEFICIAL PARENTAL
RELATIONSHIP EXCEPTION APPLIED.. . . . . . . . . . . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

WORD COUNT CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

DECLARATION OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2
 TABLE OF AUTHORITIES

CASES

In re E.T. (2018) 31 Cal.App.5th 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re Kimberly F. (1997) 56 Cal.App.4th. 519. . . . . . . . . . . . . . . . . . . . . . . 6

In re Rocco M. (1992) 1 Cal.App.4th 818. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES

Welfare and Institutions Code section 388 . . . . . . . . . . . . . . . . . . . . . . . . 5-7

Welfare and Institutions Code section 366.26, subd. (c)(1)(B)(i). . . . . . . . . 7

3
 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

In re KAYLEE S., et al., ) Appeal No. E072044

)
Persons Coming Under )
The Juvenile Court Law. ) Superior Court
) No. RIJ1701026
RIVERSIDE COUNTY )
DEPARTMENT OF PUBLIC SOCIAL )
SERVICES, )
)
Petitioner and Respondent, )
)
v. )
)
KARI H. (mother), )
)
Objector and Appellant. )
)

INTRODUCTION

Appellant Kari H. hereby incorporates and reaffirms all the

arguments set forth in appellant’s opening brief. In this reply, appellant

addresses only those points needing reply, amplification or explanation.

Failure to reply to a particular point raised in the respondent’s brief is not

intended to be deemed a concession or waiver of those points; rather, it is

believed the point was adequately and sufficiently addressed in appellant’s

opening brief, and no additional argument is deemed necessary.

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 ARGUMENT

THE EVIDENCE SHOWED A CHANGE OF CIRCUMSTANCES

AND THAT IT WAS IN THE CHILDREN’S BEST INTEREST TO
GRANT MOTHER’S REQUEST FOR ADDITIONAL TIME TO
REUNIFY WITH HER CHILDREN.

Respondent Riverside County Department of Public Social Services

(Department) argues the juvenile court properly denied Mother’s Welfare

and Institutions Code1 section 388 petition because the evidence did not

show a change of circumstances in that the mother did not complete a drug

treatment program, never received a certificate of completion, and left the

outpatient program prematurely to enter an inpatient treatment program that

she also left early after four or five days. (RB 17.) To the contrary, the

references to the record the Department cites do show Mother completed a

drug treatment program. The letter from MFI Recovery that the Department

cites states Mother completed 24 sessions of Outpatient Treatment at the

MRI Recovery Center on September 10, 2018. (2CT 490.) Mother

testified she entered the inpatient program after finishing this outpatient

program. (RT 73, 75.)

The Department then cites Mother’s drug tests in May and June 2018

1
All further statutory references are to the Welfare and Institutions Code
unless otherwise specified.

5
showing mother tested positive for methamphetamine to support it

argument Mother did not sustain a prolonged period of sobriety. (RB

17.) But that was prior to the court terminating reunification services and

Mother filing the section 388. (2CT 283.) True, Mother did have one

relapse in August 2018 wherein she drank alcohol. (RT 77-78, 82.) But

Mother came clean, contacted her attorney about it, and enrolled herself into

the in-patient program. (RT 78.) The section 388 hearing took place in

January 2019. It is well established that the juvenile court must base its

order on the current circumstances at the time of the dependency hearing.

(In re Rocco M. (1992) 1 Cal.App.4th 818, 824.)

The Department then argues the evidence did not show that the

children’s best interest would be served by granting Mother’s section 388

petition, for the children were bonded to their caregivers and thriving in

their care. (RB 18.) However, the bond to the caretaker is not dispositive

in ruling on a section 388 petition. (In re Kimberly F. (1997) 56

Cal.App.4th. 519, 531.)

The Department then argues Mother did not maintain consistent

visitation with the children. (RB 18.) But the aunt explained that when

Mother did not visit it was because of transportation problems. (RT 55.)

Moreover, the section 366.26 report dated November 28, 2018, still

6
reported that Mother was attending her visits at least once a week, they

were reported to go well, she was attentive to the children’s needs, and they

appeared to be calm in the visits and they interacted well. (2CT 412.)

The Department concludes by arguing Mother was given multiple

opportunities over the past three years to resolve her issues. (RB 21,

emphasis added.) To the contrary, the dependency petition was filed on

December 21, 2017, 13 months prior to the court denying the section 388

petition and terminating parental rights. (1CT 14.) And Mother was only

given one opportunity to resolve her issues: six months of reunification

services. In light of this short period of time Mother was provided to

overcome substance abuse, the court should have granted the section 388

request and extended reunification services.

II

THE JUVENILE COURT ABUSED ITS DISCRETION IN NOT

FINDING THE BENEFICIAL PARENTAL RELATIONSHIP
EXCEPTION APPLIED.

In arguing the juvenile court did not abuse its discretion in finding

the beneficial parental relationship exception of section 366.26, subdivision

(c)(1)(B)(i), did not apply, the Department advances the same arguments it

makes regarding Mother’s section 388 petition: Mother did not maintain

regular visitation with the children, Mother failed to complete a drug

7
treatment program, and the children were bonded to the caregiver, their

aunt. (RB 27-29.) These arguments have been addressed above,

The Department also argues there was no compelling reason not to

terminate parental rights, in that there was no evidence either child would

suffer detriment from termination of parental rights. (RB 30.) The

Department is wrong.

The social worker opined Mother had a close and loving bond with

the children. (2CT 288.) The children were very responsive to their

mother, and when in her presence, they were full of smiles and laughter,

and appeared to feel at ease. (2CT 288.) The grandfather believed there

was a great bond between Mother and the children, and that without Mother

being around the children, it would be a lot harder on them than it already

was. (RT 43.) The aunt admitted there was a bond between the children

and Mother, there was never a question in her mind that Mother loved her

children and the children loved their mother, and Kaylee saw Mother as a

parental figure. (RT 53.) As set forth more fully in Appellant’s Opening

the undisputed evidence showed the children, especially Kaylee, continued

to share a positive parent-child bond with their mother, knew she was their

mother, wanted to be with her, and Mother continued to act as a parent to

her children through her visits. (AOB 42-45.) Thus, there is no question

8
that the children have a substantial and positive attachment to Mother such

that terminating their familial relationship would cause them great harm.

(In re E.T. (2018) 31 Cal.App.5th 68, 77.)

CONCLUSION

For the above reasons, as well as those set forth in appellant's

opening brief, appellant respectfully requests this court reverse the order of

the juvenile court denying her section 388 request for additional time to

reunify with her children, and reverse the order terminating parental rights.

Dated: April 15, 2019. Respectfully submitted,

JOSEPH T. TAVANO
Attorney for Appellant
Kari H.

9
 WORD COUNT CERTIFICATION
(Cal. Rules of Court, rules 8.360(b)(1), 8.412(a).)

The text of appellant’s reply brief consists of 1170 words as counted

by the WordPerfect word-processing program used to generate the brief.

Dated: April 15, 2019.

JOSEPH T. TAVANO
Attorney for Appellant
Kari H.

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In re Kaylee S., et al
Court of Appeal No. E072044

DECLARATION OF SERVICE

I, the undersigned, declare: I am over the age of eighteen years and

not a party to the cause; I am employed in, or am a resident of, the County
of San Diego, California; where the mailing occurs; and my business
address is 4364 Bonita Road, # 121, Bonita, California 91902-1421. I
caused to be served the Appellant's Reply Brief by placing a copy in a
separate envelope addressed as follows:

Kari H. (Appellant)
(address withheld)

I then sealed each envelope and, with the postage thereon fully
prepaid, I placed each for deposit in the United States mail, at Bonita,
California on April 15, 2019. I also electronically served a copy to the
following via TrueFiling electronic services on April 15, 2019:

Appellate Defenders Inc. eservice-court@adi-sandiego.com

Office of County Counsel
Hon. Matthew C. Perantoni
David A. Goldstein, Esq.
Theresa Devries, Esq.
Bruce Williams, Esq.
countycounsel@rivco.org
appealsteam@riverside.courts.ca.gov
dag5559@aol.com
tdevries@juvdp.com
showbizlaw@yahoo.com

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct. Executed on April 15, 2019,
at Bonita, California.

JOSEPH T. TAVANO

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