Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK 57243, Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Marissa C., the mother of the three minors who are the subjects of this appeal and Jordan, who is the subject of a separate dependency petition, appeals from the juvenile court’s order denying her Welfare and Institutions Code section 388 petition. Appellant contends the court erred in denying her petition without a hearing. We reverse and remand with directions to hold a hearing on appellant’s petition.
The three minors who are the subject of this petition all have unusual first names that start with the same initial. Hence, they are referred to as the children or the older children.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SYNOPSIS
I. The Petition
On November 19, 2004, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition on behalf of appellant’s three older children. The juvenile court detained the children in foster care on allegations that Ramon Y., the father of the two younger children, had severely physically abused the oldest child, causing a large hematoma and bleeding to the child’s scalp that required emergency medical treatment.
The petition also alleged the physical abuse was ongoing, appellant knew about the abuse and failed to protect the children, and all of the children were physically abused by both parents. The petition alleged the oldest child suffered from severe, untreated ringworm, both parents abused drugs or alcohol and engaged in domestic violence, and the parents had previously entered into a voluntary contract with the Department in which they agreed to participate in domestic violence counseling, but failed to comply with the case plan. There were also allegations father had raped the maternal aunt when she was 11 years old. At the hearing, counsel indicated the parents had voluntarily separated.
On February 2, 2005, the court declared the children dependents under section 300, subdivisions (a) (physical abuse), (b) (failure to protect) and (j) (abuse of sibling) and dismissed some counts. The court ordered reunification services, including that appellant participate in individual counseling, domestic violence counseling, parent education and drug testing on the condition that if she missed a test or tested positive, she would complete a drug treatment program. The court ordered father to participate in drug rehabilitation and testing, domestic violence counseling and parent education. The court placed the children in foster care and ordered monitored visits for the parents.
II. Review Hearings
In July 2005, the Department reported the parents had reconciled and were residing together. Appellant was pregnant and attending parenting and domestic violence counseling sessions, had submitted five clean drug tests, but twice had failed to show for testing. Father was minimally complying with the case plan. Both parents had visited the children, but they had missed several visits and were often late. All the children were doing well in their respective placements. The court ordered the Department to provide further reunification services.
In August, the Department reported the children were now all residing in the home of their maternal uncle. As appellant had missed two additional drug tests, the court ordered her to complete a drug treatment program with random testing.
For the January 2006 hearing, the Department informed the court the parents had not provided confirmation of their compliance with the case plan, had failed to maintain contact with the Department and continued to inconsistently test for drugs. Appellant had not showed for 10 out of 19 drug tests and had submitted non-human urine for one test. The children, who continued to reside with their uncle, were thriving. Appellant had given birth to Jordan the previous summer.
At the March hearing, the court terminated family reunification services and set a section 366.26 hearing.
III. Section 366.26
On July 31, 2006, the court held a section 366.26 hearing and a status review hearing. According to the uncle, the parents visited every weekend on a monitored basis; the visits were positive. Appellant continued to participate in parenting, drug testing and domestic violence counseling, but she continued to miss tests and had not participated in individual counseling or completed domestic violence counseling. The Department sought to place the children under a plan of legal guardianship with their uncle. The court continued the section 366.26 hearing to clarify the uncle’s wishes.
On August 30, the court granted the uncle legal guardianship and issued letters of legal guardianship. The court liberalized the parents’ visits to unmonitored day visits.
On December 13, the Department informed the court that, according to the uncle, the children were residing with their grandmother in Texas. The uncle had moved the children without informing the Department. The uncle said he needed the grandmother’s assistance in caring for the children because his job required him to travel internationally. The uncle and an aunt who had been providing care for the children moved to Texas as well. The family agreed the aunt and the grandmother would care for the children until the uncle returned from his travels. Although the uncle did not notify the Department, he was in contact with the children’s attorney and had enrolled them in school in Texas. The Department requested, and the court ordered, an expedited Interstate Compact for the Placement of Children (ICPC) in Texas.
IV. Review Hearing
In January 2007, the Department informed the court the children continued to reside in Texas with their grandmother. The parents continued to reside together with Jordan. Appellant had completed domestic violence counseling and was planning to enroll in drug treatment within the week. Appellant was attending individual counseling, but her counselor stated appellant was not complying and faced discharge. Before the children left for Texas in November 2006, appellant had maintained physical and telephonic contact with the children. Since then, appellant had maintained telephonic contact. The court continued the matter for a progress report on the ICPC and to address whether to terminate its jurisdiction.
On February 26, the Department filed a dependency petition on behalf of Jordan after he suffered an injury consistent with a cigarette burn on his wrist. The court placed Jordan with a maternal aunt.
The Department attempted to assess whether Jordan could return home, but neither parent contacted the children’s social worker (CSW) despite her many attempts to reach them. The Department recommended maintaining Jordan in out-of-home care. Subsequently, the CSW conducted a meeting with the parents even though they arrived an hour and a half late. At the close of the meeting, the parents agreed to pursue different residences and to contact the Department once they had done so. The parents did not contact the Department. The Department requested discretion to place Jordan with appellant upon confirmation her residence was appropriate and there was an appropriate monitor for father. Meanwhile, Texas approved the older children’s placement there.
In July, regarding Jordan, the court found true an amended petition under section 300, subdivision (b) (neglect) and continued the matter to assess placing him with appellant. The Department reported appellant had completed all the case plan objectives and agreed to continue to test for drugs. The court released Jordan to appellant’s custody and ordered services and monitored visits for father on the condition that appellant not be the monitor and the visits not take place in her home.
The report for the three older children indicated that according to Texas authorities, the placement remained stable, appropriate and consistent with the children’s best interests. The Department indicated appellant had completed all her court orders. The children maintained telephonic contact with their parents. On July 30, the court ordered the plan of guardianship to remain in place. At the hearing, the court stated appellant was “in substantial compliance” and it looked like she had “done a lot.” Appellant stated she was going to file a section 388 petition, the court responded, “Good.” and “Great. Keep up the good work and file your 388’s. We will come back here then.”
V. Section 388 Petition
On August 13, 2007, appellant filed a section 388 petition, seeking to change the July 30 order maintaining the legal guardianship. Appellant requested the older children be returned to her custody or, in the alternative, the court reinstate reunification services, allow an extended visit with her, and then terminate the legal guardianship. In support of her requests, appellant cited to the facts Jordan had been placed in her custody and she had fully complied with the case plan. Both father and the uncle agreed with her request. On September 19, the court indicated it would wait to rule on the petition until the previously scheduled October 24 hearing to receive more information from the Department. On October 24, the court continued the hearing until November 16 for an investigation by the Department to determine whether to grant the section 388 petition.
The minute order states the investigation was for the court “to see if the petition should and or should not be granted.” At the hearing, the court noted it had not ruled on whether it would “grant the mother’s 388 for a hearing.”
The Department submitted two reports for the November hearing. The first report was a status report on Jordan, who continued to reside with appellant. In that matter, the court had ordered appellant to participate in individual counseling and drug testing. According to appellant, due to complications with her current pregnancy, she had missed some drug tests; she tested five times and failed to show eight times. The Department had received no confirmation of any medical problems. Jordan appeared to be doing well in appellant’s custody, and appellant reiterated her desire to remain compliant and regain custody of her other three children. The Department recommended keeping Jordan’s case open as he had only been home for four months, appellant was pregnant again, and she had not completed court orders.
The second report addressed the section 388 petition. The Department reminded the court that appellant had been ordered to participate in individual counseling and weekly drug testing. The Department was concerned appellant had yet to complete the case plan (i.e., she had not completed her court-ordered counseling or parenting classes and was not compliant with weekly drug testing), Jordan had only been home for four months and was only 2 years old, and appellant was again pregnant, which was another stress factor. The Department recommended denying the petition.
The court ordered Jordan remain home with appellant and retained jurisdiction over that matter. The court denied the section 388 petition and ordered appellant’s counsel to file another petition with updated information on appellant’s ability to resume custody of all the children by the next court hearing, which was scheduled for January 2008. The court summarily denied the petition based on appellant’s long history of drug abuse and her current missed tests. The court wanted appellant to “have a better track record” before considering her petition.
Appellant filed a timely notice of appeal from the order denying her petition.
DISCUSSION
Appellant contends the juvenile court erred when it summarily denied her section 388 petition as she had met her burden of proving changed circumstances and that the requested modification would be in the children’s best interests, the failure to provide a hearing violated her right to procedural due process, and the court erroneously denied her request for a continuance of the hearing.
“If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. ‘The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.’ ‘A “prima facie” showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’” (Citations omitted.) (In re Daijah T. (2000) 83 Cal.App.4th 666, 673.)
However, a party filing a section 388 petition is not automatically entitled to a full hearing on the motion. If the petition fails to state a change of circumstances that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 5.570(d).) “The petition is addressed to the sound discretion of the juvenile court and its discretion will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451 [The denial of a petition without a hearing is reviewed for an abuse of discretion keeping in mind “‘the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.’”].)
Even though appellant cites a multitude of cases holding abuse of discretion is the appropriate standard of review for an order denying a section 388 petition without a hearing, she suggests those case were improperly decided and urges the court to adopt the independent standard of review. Because dependency proceedings are ongoing more so than other proceedings, we follow the cases applying the abuse of discretion standard. The nuances of determining whether the petition sets forth changed circumstances and best interests requires familiarity with the parties and the proceedings to date.
A section 388 petition “must be liberally construed in favor of its sufficiency. Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing. The court may deny application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction.” (Citations omitted; original italics.) (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) Thus, whether appellant made a sufficient showing entitling her to a hearing “depends on the facts alleged in her petition, as well as the facts established as without dispute by the court’s own file.” (Ibid.)
Section 388 gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The Department contends the court was correct to deny the petition without a hearing noting that best interests was a crucial issue and that there is a rebuttable presumption continued foster care is in the children’s best interests. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) Even though the Department acknowledges it was undisputed that appellant had made significant progress, it asserts it was premature to hold a hearing because there were concerns about current stressors in appellant’s life (i.e., the recent return of Jordan to her custody, his young age and her current pregnancy).
When the parties were before the court in July 2007, appellant indicated she was going to file a section 388 petition. The court essentially encouraged her to do so noting her good work and commenting she had “done a lot.” Appellant filed her petition on August 13. Rather then rule on the petition at the September 19 hearing, the court indicated it would wait to rule on the petition. On the “Request to Change Court Order” form (Judicial Council form JV-180), the court checked the box under item 13 stating: “The best interest of child may be promoted by the requested new order, and either (a) the request states a change of circumstance or new evidence, or . . . .” Rather than check one of the two options on the form, the court added option (c) and wrote in “The court will wait ruling on the 388 Petition until the next court hearing set on 10-24-07. The court needs more information from [the Department] to come forward.”
On October 24, the court continued the hearing until November 16 for the Department to prepare a report, properly notice the parties of its recommendation and investigate the petition to see if it should be granted. On November 16, noting the petition was technically not on calendar, the Department asked the court to deny the petition. Appellant’s substitute counsel asked the court to set the petition for hearing so her regular counsel could be present. The court denied appellant’s request to continue the hearing and summarily denied the section 388 petition on the basis of her long history of drug abuse and her current missed tests. The court stated it did not have enough information about the missed tests. The court indicated appellant could file another petition between then and January 28.
Based on the court’s checking boxes on the form, it appears to this court that the juvenile court determined a hearing would promote the best interests of the children and the petition set forth changed circumstances or new evidence. In addition, the court gave the Department the opportunity to present a supplemental report. There would have been no need for such a report if the court had concluded the petition was inadequate on its face. (See In re Lesly G., supra, 162 Cal.App.4th at p. 913.) Although the court considered the Department’s supplemental report and ruled on the petition at a hearing for which it was not scheduled, it denied the request to continue the hearing in order for appellant’s regular counsel to be present so appellant was unable to present any argument about the petition.
We note that in July 2007, the Department informed the court that appellant had completed court orders; yet, in the supplemental report prepared in response to appellant’s section 388 petition, the Department stated appellant had not completed court-ordered counseling or parenting and was not compliant with weekly drug testing. As a matter of fundamental fairness, appellant should have been given the opportunity to present her side of the story particularly as regards her missed drug tests. Thus, given the procedural stance of this case in which the court did the equivalent of finding appellant had made a prima facie showing, we conclude the court abused its discretion to deny the petition without a hearing. On remand, the juvenile court is directed to hold a hearing on appellant’s section 388 hearing.
DISPOSITION
The order is reversed and remanded with directions to hold a hearing on appellant’s section 388 hearing.
We concur: PERLUSS, P.J. ZELON, J.