Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34634
McGuiness, P.J.
In her second appeal in this dependency matter, R.S. (Mother), mother of twelve-year-old H.G. and six-year-old J.G., challenges the juvenile court’s orders denying her motion to have H.G. placed in another foster home and her request for an evidentiary hearing on that motion. She contends the juvenile court erred in: (1) allowing a social worker “who had a clear conflict of interest, [to] remain[] substantially involved in the case”; (2) denying her request for an evidentiary hearing on her motion for a change in placement; and (3) failing to apply the correct burden of proof in denying the motion. We reject the contentions and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
First Appeal
We recently resolved Mother’s first appeal in an unpublished opinion (April 29, 2011, A128565). There, Mother challenged the juvenile court’s jurisdictional and dispositional orders and a restraining order that was issued against her. We affirmed the orders. The essential facts from the proceedings underlying the first appeal are as follows.
We hereby grant Mother’s unopposed request for judicial notice of the record and her opening brief in the first appeal. To obtain context, maintain consistency and economize judicial resources, we also take judicial notice of our prior opinion. (Evid. Code, § 451, subd. (a); see In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3.)
H.G. and J.G. are autistic, nonverbal children who require constant attention. The Solano County Health & Social Services Department (the Department) filed an original petition on behalf of then-five-year-old H.G. on April 12, 2004, after Mother left him unsupervised for at least two hours while she slept. An original petition was filed on behalf of then-five-month-old J.G. on February 10, 2005. The juvenile court dismissed both petitions after the Department developed a plan for services for Mother and a substance abuse assessment showed she had “ ‘no signs or symptoms of active addiction.’ ”
A second petition was filed on July 15, 2008, after J.G. was found wandering outside in only a diaper, the home was filthy with safety hazards everywhere, and Mother appeared to be under the influence of a controlled substance. The children were dirty and were eating dog food and other food off the floor. H.G. was “combative” with a police officer and J.G. tried to bite another officer. Mother was aggressive towards the social worker who responded to the home. She did not submit to random drug tests and did not participate in mental health and substance abuse evaluations. On one occasion, she pushed a security guard and the Department expressed concern with “the stability of [Mother’s] emotional state as she [regularly] goes into rages which range from aggressive (mostly verbal), to yelling, irrational thoughts and then to crying within a matter of minutes.” The juvenile court dismissed the second petition on May 5, 2009, after Mother agreed to participate in services.
The third and current petition was filed on January 22, 2010, after H.G. was found outside the home naked and J.G. was found walking up and down the street alone, naked and covered in feces. The home was filthy, the children had lice, and H.G. was diagnosed with scabies. Mother appeared to be under the influence of a controlled substance.
On January 22, 2010, H.G. was placed in the same foster home in which he had been placed during the second dependency action. Social worker Bonnie Mencher testified at the jurisdictional hearing that Mother was concerned about H.G.’s placement and that she took her concerns seriously. Mencher spoke to minors’ counsel and to the social worker who was assigned to the prior dependency action, consulted with her supervisor and program manager regularly, and maintained contact with H.G.’s foster parent on at least a weekly basis. The foster parent agreed that “any kind of mark or injury, ... even if it’s a teeny tiny scratch because he bumped into the wall” would be reported and documented. The foster parent had been “really great about keeping [Mencher] informed.”
Mencher testified the children had unexplained injuries on six occasions while they were in Mother’s care, and that Mother had explained in those instances that her children engaged in “self-injurious behavior.” Mencher saw H.G. regularly and had seen him engage in “these behaviors that could cause injury.” She also noted that H.G. had red marks and bumps “all over [his] torso” when he was detained and was later diagnosed with scabies. Mencher testified, “Just because the child comes with a bruise and we don’t know the exact cause or how he sustain[ed] it does not equate to him being abused by somebody. I do not believe he’s being abused in the foster home.” On one occasion, the foster parent’s lap dog “nipped at [H.G.] when he kind of lunged toward [the dog].” H.G. did not require medical attention, and the foster parent agreed to keep the dog away from him.
Mencher testified at the dispositional hearing that H.G. occasionally got bumps and bruises from hitting himself, banging his head, or throwing his body against things. The bruises were usually smaller than the size of a quarter and were “singular, ” and Mencher did not believe they were non-accidentally inflicted. Mencher also consulted with H.G.’s pediatrician, who stated she had seen the bruising but was not concerned about abuse. Mencher testified that the foster parent was licensed and trusted by others and was caring for other children who had been voluntarily placed there by their parents. The foster parent was “very happy” with H.G.’s progress. He was sleeping well, had a good appetite, and had learned to sit at the table to eat a meal. Mencher believed the foster home would “not only meet his needs, but [would also] help him develop to his full potential.”
Social worker Claire Kelley testified the children “acted up” and were “sometimes more difficult to... manage than [the] average child” because they were autistic. When H.G. was aggressive, he would grab Mother or slap or hit himself in the forehead with his hands or with an object.
Many of the Department social workers reported that the supervised visits were problematic in part because Mother constantly stripped H.G. of his clothes to check for bruises or marks, even after being instructed by the Department not to do so. During one visit, she insisted H.G. was bruised and that a child abuse report had to be filed, even though Mencher and her supervisor did not see any bruises. Mother then accused Mencher and her supervisor of “cover[ing] up” H.G.’s injuries and proceeded to take off all of his clothing and pull his diaper down. She left temporary red marks on H.G.’s body as she grabbed him and he squirmed around and tried to get away. The situation escalated and security was called when Mother refused to leave. On another occasion, Mother became upset that H.G. “had injuries on him” and said she was going to handcuff herself to H.G. so that he could not leave. Social worker Kelley had to “try to get [H.G.] out of there as soon as [she] could because [Mother] really was looking for handcuffs.” In April 2010, the juvenile court issued a restraining order against Mother after she struck Mencher and physically intimidated her during a meeting at which they discussed H.G.’s bruises and a recent well-child visit. The restraining order expired by its terms on September 29, 2010.
Mother appealed from the juvenile court’s jurisdictional and dispositional orders and also challenged the restraining order, asserting the restraining order was overbroad and created a conflict of interest and that the Department had not complied with the Indian Child Welfare Act. As noted, we affirmed the orders.
Current appeal
On July 29, 2010, Mother filed a motion requesting that H.G. be placed in a different foster home or that a hearing be conducted “to determine whether removing [H.G.] from his placement would be in his best interest.” She declared she had “observed on several different occasions that [H.G. had] bruises of various size and coloration, and on varying places on his body, as well as other injuries.” She had not “consistently received explanations for how these injuries occur[ed].” She had also “observed [H.G.] to be suffering from a rash that appear[ed] to be insufficiently or incorrectly treated based on its continuing presence.” She had told the social worker “since the initial removal” that H.G. should be seen by a dermatologist but he had “only recently” been seen by one.
Social worker Alexandra Fernandez declared that H.G. was a “very active child” who engaged in “self-injurious behaviors, including banging his head against the wall and hitting himself on the head with his hands.” At every visit Fernandez supervised, Mother inspected H.G’s body by lifting his clothes and partially pulling his pants down. She “also on occasion asserted that [H.G.] need[ed] to use the restroom, ... [then] inspected his unclothed body as part of the trip to the restroom.” On at least one occasion when Fernandez attempted to redirect Mother and encourage her to spend her time visiting with her children, Mother challenged Fernandez stating, “ ‘go ahead and report me.’ ” At each visit, Mother pointed out bruises or other injuries. There were times Fernandez “actually noticed bruising on [H.G.], ” and at other times, she was “unable to see what [Mother was] referring to.” Each time, Fernandez directed Mother to speak to her case manager about her concerns.
Social worker Samantha Hamilton declared that whenever the foster parent reported injuries, she relayed that information to Mother. It was often unclear how injuries occurred because H.G. was an “extremely active child and frequently engage[d] in self-injurious behaviors.” Hamilton had seen H.G. hit his head with his hands and throw himself on the ground. On one occasion, security was called when H.G. yelled, dropped to the floor, and “dug his fingernails into the visit supervisor’s skin” when the supervisor tried to stop him from banging his head on the wall. On another occasion, H.G. threw a tantrum, hit his head and scratched and banged his head on the ground. Mother gripped him firmly around the chest and back, and it took two social workers, two receptionists, two security guards and Mother to escort H.G. to the back of the building, where H.G. saw his foster parent and immediately calmed down. Hamilton had visited H.G.’s school and the foster home and had also made an unannounced visit to the foster home. H.G. appeared to be well cared for and there was no evidence he was being abused.
Hamilton further declared that at some point, H.G. was treated for a “diaper like rash” and was diagnosed with psoriasis, and later, folliculitis. The pediatrician did not believe H.G. needed to see a dermatologist but the foster parent took him to see one after he broke out in a “full body rash.” H.G.’s skin was looking “much better” after the dermatologist diagnosed him with psoriasis and treated the condition “more aggressively.” When Mother pointed out circular red marks on H.G., Hamilton suggested the marks were psoriasis, and the foster parent confirmed they were.
Mother filed a responsive declaration stating H.G. had new injuries and bruises at all but three visits. “The majority of the bruising consist[ed] of small, round bruises that [were] on parts of the body that would be next to impossible to be self-inflicted, such as on his back, on the back of his leg, and on his underarms.” She believed H.G. was also being neglected because he had only recently been taken to see a dermatologist and had been misdiagnosed with scabies and folliculitis as a result of a delay in seeking proper medical care.
The juvenile court denied Mother’s request for an evidentiary hearing, stating it would not “serve any useful purpose in this case.” It also denied her motion, stating, “Not only did [Mother] not meet her burden, I actually feel by clear and convincing evidence that the minor is being appropriately cared for in his current placement. And this is both on the injury side... [and] the medical side. It’s not unusual for health providers to start with a lower level of treatment and then progress to a higher level of treatment... I don’t think that the foster parent... has demonstrated any lack of care for [H.G.] because of the way his skin condition was treated by the medical people who are involved.”
Discussion
1. Conflict of Interest
Mother contends the juvenile court violated her right to due process by allowing Mencher, “who had a clear conflict of interest [due to the restraining order], [to] remain[] substantially involved in the case” by providing information to the evaluator who conducted Mother’s psychological evaluation. She asserts that Mencher said unfavorable things about her to the evaluator, and that as a result of the evaluation, a new requirement that she “ ‘[c]ooperate with [her] child welfare worker and care provider to resolve problems’ ” was added to her case plan.
However, Mother did not, at any point during the proceedings below, argue that the restraining order created a conflict of interest or that Mencher should be removed from the case. She did not object to the validity of the psychological report on the ground that Mencher had provided information to the evaluator, and did not request that a new evaluation be conducted. She also did not object to the new requirement that was added to her case plan. Thus, we conclude Mother has forfeited the issue. We also deny Mother’s request that we exercise our “inherent discretion to decide [this] ‘waived’ issue[].”
2. Change in Placement
a. Right to a hearing under section 388
Mother contends the juvenile court erred in denying her request for an evidentiary hearing on her motion for a change in placement. We reject the contention.
Welfare and Institutions Code section 388, subdivision (a), allows a parent to petition the juvenile court “for a hearing to change, modify, or set aside” any previous order “upon grounds of change of circumstance or new evidence.” Subdivision (c) provides, “If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held.” Thus, a juvenile court is required to set a hearing on a section 388 petition only where the petitioner makes a prima facie showing that there is new evidence or changed circumstances and the requested relief is in the child’s best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323.) A juvenile court’s decision denying a section 388 petition will not be disturbed on appeal absent a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
All further statutory references are to the Welfare and Institutions Code. Mother did not cite section 388 in her motion for a change in placement but states on appeal that all of the parties and the court “understood [her] motion to be a section 388 request” and treated it as such.
Mother declared in her section 388 petition that she had observed bruises and injuries on H.G. and that she was concerned about how his skin condition was being treated. However, she had expressed the same concerns—as well as other concerns such as H.G.’s weight loss—to the Department and to the juvenile court throughout the proceedings relating to the third petition, and the issues were extensively discussed and considered at the jurisdictional and dispositional hearings at which several social workers testified and Mother had the opportunity to cross-examine them. Mother specifically requested at jurisdiction and disposition that H.G.’s placement be changed, based on his bruises and his rash, and the juvenile court denied the requests, ordering that H.G. remain in his foster home.
Moreover, Mother did not make a prima facie showing that a change of placement would be in H.G.’s best interests. She did not, for example, present any evidence that H.G.’s injuries were the result of abuse, as opposed to self-injurious behavior. She did not present any evidence that H.G.’s skin condition had worsened due to the foster parent’s lack of care or neglect. She did not present any evidence in opposition to evidence the Department presented at the dispositional hearing that H.G. was doing well in his foster home and that the foster parent was “not only meet[ing] his needs, but [was also] help[ing] him develop to his full potential.” The juvenile court did not abuse its discretion in denying Mother’s request for a hearing on the matter.
Mother argues the juvenile court nevertheless erred because it essentially held a “hearing” by allowing the Department to submit declarations from two social workers and to argue the case, but did not allow her to cross-examine the social workers, in violation of her due process rights. We conclude that any error in denying Mother’s request for a full evidentiary hearing was harmless beyond a reasonable doubt.
Mother relies primarily on In re Clifton V. (2001) 93 Cal.App.4th 1400 (Clifton V.) for the proposition that a court’s refusal “to hear live witness testimony” when holding a hearing under section 388 “should not be seen as harmless.” Clifton V., however, is distinguishable. There, the mother filed a section 388 petition requesting that her son be returned to her care due to the changed circumstance that she was visiting and calling him more frequently. (93 Cal.App.4th at p. 1403.) The paternal grandmother submitted a declaration stating the mother was not telling the truth about the frequency of the calls and visits. (Ibid.) The Court of Appeal held the juvenile court violated the mother’s right to due process by denying her request for a full evidentiary hearing and that the error was not harmless beyond a reasonable doubt because the matter involved “a clear credibility contest between [the] mother and the paternal grandmother” and “the juvenile court was at a great disadvantage in evaluating the parties’ credibility” “[w]ithout the benefit of live testimony and cross-examination.” (Id. at pp. 1405, 1406.)
Here, in contrast, the issues relating to H.G.’s bruises and rash did not involve a “clear credibility contest.” Mother did not dispute that H.G. was an active child who engaged in self-injurious behavior nor did she dispute her children had similar unexplained injuries while they were in her care. The Department did not dispute there were bruises and injuries on occasion or that the foster parent did not initially take H.G. to see a dermatologist for his skin condition. Moreover, as noted, several Department social workers testified at length regarding these issues at the jurisdictional and dispositional hearings, and Mother cross-examined them. Thus, the juvenile court, unlike the juvenile court in Clifton V., had already had the opportunity to make the credibility determinations it needed to decide whether H.G. should be removed from his foster home. Because Mother did not present any new essential facts in connection with the section 388 petition that would have required further credibility determinations, there was no need for further live testimony, and any error in not conducting a full evidentiary hearing was harmless beyond a reasonable doubt.
b. Burden of proof
When a party requests a change in a child’s placement, the burden of proof is on that party to show by a preponderance of the evidence that there is new evidence or “a change in circumstances” that make a change of placement in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Mother asserts “it is not clear the trial court applied the correct burden of proof when deciding the issue” because minors’ counsel and the Department’s attorney argued that the burden of proof was clear and convincing evidence, and the juvenile court did not articulate which standard it was applying in deciding the issue. Where a juvenile court does not articulate the burden of proof that it is applying, however, it is presumed the court applied the correct standard, absent “a record [that] affirmatively demonstrates error.” (See Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025 [the minute order reflected the incorrect standard but the juvenile court did not state it was applying that standard].) We reject Mother’s contention in light of the juvenile court’s failure to articulate an incorrect standard, Mother’s failure to request clarification of the record below, and the lack of “a record [that] affirmatively demonstrates error.”
Disposition
The juvenile court’s orders are affirmed.
We concur: Pollak, J., Siggins, J.