Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK02172, D. Zeke Zeidler, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
ALDRICH, J.
INTRODUCTION
Anne S. appeals from the orders of the juvenile court that denied her petition for modification (Welf. & Inst. Code, § 388) and that prohibited Anne’s friend Tania C. from serving as visitation monitor. We affirm the orders.
All further references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background of this dependency
We cull the following relevant factual background from our previous opinions in this case (B198749; B205586; B189816; B210462; B213822; B215054). The family came to the attention of the Department of Children and Family Services (the Department) when they were found sleeping in Anne’s car in a beach parking lot. By then, the family had been homeless for over a year. This dependency arose because of the state of Anne’s mental health, which “ ‘affect[ed] her judgment and ability to properly care for and supervise her children, ’ ” Kerrie S. (age 11 years) and Luis S. (age 13.5 years). As a result of her mental health issues, Anne made inappropriate decisions for the children and false allegations and accusations about people close to the children. Anne was agitated, confrontational, and uncooperative in front of the children. She was argumentative, violated the court’s visitation orders, undermined and demeaned the children’s relationships with their grandmother, and was unable to comply with the conditions of her visits. The juvenile court declared the children dependents under section 300, subdivision (b) and removed them from Anne’s custody. Eventually, the court terminated reunification services because Anne made questionable progress in therapy and her visits ran the gamut from monitored to liberalized and back to supervised. The court found that the children would be at risk if returned to Anne’s care because of her inability to recognize the fact that her numerous false allegations about the children’s caretakers, her persistent need for therapy, her instability, distortion, and lack of impulse control, all put the children at risk.
In April 2007, the juvenile court appointed H.D., the children’s paternal grandmother, as their legal guardian. Since then, Anne has filed a series of petitions for modification under section 388 seeking return of the children to her, or alternatively, additional or liberalized visitation.
2. The petition at issue in this appeal
By the middle of July 2010, Anne’s visits with the children were monitored by the Human Services Aid at the Department and by Anne’s friend Tania C. The social worker had met face-to-face with Tania and explained that she was to be neutral and report any concerns or inappropriate behaviors on Anne’s part. Tania also signed a Rules for Monitored Visits form.
Most recently, Anne filed a section 388 petition on August 25, 2010 seeking to have the children removed from the legal guardian’s custody and placed with Anne, or in a foster home in close proximity to Anne. In support of the petition, Anne alleged that Kerrie reported during a visit with Anne that the father, who had been convicted of drug trafficking, was living in the guardian’s house and smoking marijuana and bringing friends home who abuse illegal drugs in violation of juvenile court orders. The requested modification was in the children’s best interest, Anne’s petition alleged, because if the allegations are true, the children are in danger of physical or emotional abuse. The Department then received a referral alleging general neglect in that father smokes marijuana while visiting the children.
Father is not a party to this appeal.
Despite the fact the record does not show any supporting documentation for the petition, the juvenile court set the matter for a hearing and ordered the Department to “immediately: [¶] (1) Investigate allegation that father is living in the home, smoking marijuana, and bringing friends to the home who engage in drug use. [¶] (2) Investigate whether mother’s monitor is adequately monitoring mother’s conversations with Kerrie.... [The Department] is to prepare a report for 9/22/10 addressing the 388 & the above orders.”
The Department submitted a report for the September 22, 2010 hearing. With respect to the allegations concerning father, the Department reported that emergency children’s social worker Nuno met with the guardian and the children, and had spoken to father. Nuno found that “the referral was concluded Unfounded.” (Emphasis in original.) The children’s social worker added she “would like to inform the court that mother has made previous allegations about father living in the home of Ms. [D.] to this CSW and [to] previous CSW[s] and [those] allegations have been investigated during monthly home visits and have [been] found... false.”
As for visits with Tania as supervisor, the social worker relayed that she had spoken “several times” with the children about visits. The children reported that Tania sometimes leaves them alone with Anne in violation of the court’s order. Kerrie explained that Tania and Anne instructed the children to say nothing to the social worker about the visits as they are worried that the visits will be suspended. Kerry requested no visits with Anne because she was unsure whether Anne would treat her well. Kerrie has repeatedly stated “ ‘I’ve had it with mom.’ ” She is tired of Anne’s behavior swinging from nice to mean. The children are tired of Anne’s tardiness and want no overnight visits. The children explained that they “enjoy living with paternal grandmother, Ms. [D.] and state that they love their mom but do not want to return home with her.” Luis only visits with Anne to prevent her from making “a big deal” with the court and the Department. Kerrie strives to please Anne to appease her. Based on this report, the social worker suspended Tania as the monitor.
Notice of the September 22, 2010 hearing, along with the social worker’s recommendation that the orders remain unchanged, was sent to Anne by first class mail on September 13, 2010.
Anne did not appear at the September 22, 2010 hearing, although her attorney did. The juvenile court recited that the Department indicated that it had investigated Anne’s allegations that father was residing in the home in the past and investigated in September 2010 by meeting with the guardian, the children and father. Asked to address this issue, Anne’s attorney stated, “I would just ask that the court allow the mother to have her monitored visits with a DCFS approved monitor.” The children’s attorney requested that Anne’s visits remain monitored, and based on the information in the most recent report and on the children’s wishes, requested that the visits be monitored by a professional monitor at Anne’s expense. Counsel explained that the professional monitor would be most appropriate because of the problems Anne has had with supervisors in the past, including the Department’s monitors.
The juvenile court denied Anne’s section 388 petition and ordered that Anne’s visits be monitored at the Department’s office or by a professional monitor at least twice per month, with liberalization in the discretion of the Department.
Anne filed an application for rehearing under section 252 and a client complaint form. Therein, she alleged that she was not present at the hearing because her case had never been called. A Bonnie S. filed a client complaint form indicating that she arrived at 9:05 a.m. and waited but the case was not called. The court denied Anne’s section 252 application because such an application may not be made against a judge. Anne timely filed her notice of appeal.
Section 252 reads in part: “At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his or her parent or guardian or, in cases brought pursuant to Section 300, the county welfare department may apply to the juvenile court for a rehearing.”
CONTENTION
Anne assigns as the juvenile court error: (1) denying her section 388 petition, and (2) altering her visitation without requiring the Department or the children to file a section 388 petition.
DISCUSSION
1. The juvenile court did not abuse its discretion in denying Anne’s section 388 petition.
A section 388 petition seeks to modify the status quo in a dependency case. “Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor’s best interests. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1119, italics added.)
“It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, second italics added.)
A petition under section 388 is addressed to the juvenile court’s sound discretion and on appeal, we will disturb the decision only on a clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) “ ‘ “ [‘]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 trial court.’ ” [Citation.]’ [Citations.]” (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096.)
Anne’s petition asserted as changed circumstances that Kerrie reported during a visit with Anne on an unspecified date that father was living in the guardian’s house, smoking marijuana, and bringing in friends who were using drugs. Anne contends that the Department’s report in response to the court’s order to investigate this allegation was merely conclusory and unsubstantiated. But the Department did not bear the burden of proof on Anne’s section 388 petition.
As explained, it was Anne’s burden to prove this changed circumstance or new evidence by a preponderance of evidence. (In re S.M., supra, 118 Cal.App.4th at p. 1119.) She failed to carry this burden. She argues that she could only rely on statements received from Kerrie. Yet, Anne called no witnesses, not even Kerrie, to substantiate the allegations in her petition. Nor did she call the children’s social worker or investigating the emergency children’s social worker, Nuno, to impeach the report, if she felt it was untrue. Thus, the Department’s report constituted the only evidence the juvenile court had on the allegations in the section 388 petition.
Additionally, Anne’s attack in her appellate brief on the credibility of the Department’s investigation is unavailing. She points to the part of the report that identifies father’s address as “last known, ” to question whether the Department actually spoke to father during its investigation or where father actually lived. The attempt to impeach the investigation comes too late. “It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Anne’s contention that the court heard the matter in her absence is likewise unpersuasive. The Department notified Anne that she was to appear at 8:30 a.m. on September 22, 2010 in Department 404. Anne’s friend/witness Bonnie S. stated in her client complaint form that she arrived at 9:05 a.m. The record contains repeated comments by the children, their guardian, and the social workers that Anne consistently arrives 30 to 60 minutes late for visits. It was Anne’s responsibility to arrive on time. More important, however, the contention is unavailing because Anne was represented by counsel who was present at the hearing.
Where Anne failed to carry her burden under section 388, the juvenile court did not abuse its discretion in denying her petition.
2. The juvenile court did not change the visitation order.
Anne also contends that the juvenile court improperly modified her visitation without first requiring the Department or the children to file a section 388 petition. She also argues that the court altered the visitation order without providing her with prior notice. The Department takes no position on this contention. The children appear and argue that the juvenile court has inherent authority to change the visitation order sua sponte pursuant to section 385 and in any event, the court did not change the visitation order, just the identity of the monitor.
Section 385 reads, “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.”
On May 27, 2009, the juvenile court ordered the Department to “gradually taper down” Anne’s visits to once a month. On November 4, 2009, the juvenile court ordered that Anne have visits twice a month for four hours each, i.e. eight hours a month. The visits were monitored by the Department, and as of March 2010, Tania was allowed to monitor visits one Saturday a month.
A review of the visitation order at issue in this appeal, made on September 22, 2010, reveals no change to the visitation, except for the identity of one monitor. The juvenile court ordered monitored visits at the Department’s office or by a professional monitor, at least twice per month, with Departmental discretion to liberalize. The court also ordered that Tania could no longer function as a monitor, and that portion of the visitation order could not be altered by the Department. That is, the court reduced neither the number of visits allowed nor the length of those visits. The court made no ruling as to the location for visits or as to the Department’s power to liberalize visits. The only part of Anne’s visitation that has changed is that Tania can no longer serve as monitor, something the Department had already halted in any event. Otherwise, visitation remained unchanged. Indeed, not only did the September 22, 2010 order not alter Anne’s visitation from that devised on November 4, 2009, but it was more liberal than the court’s May 27, 2009 order, which was to gradually reduce Anne’s visitation toonce per month. Anne was not denied due process for lack of notice there would be no change in her visitation, and the court did not err in issuing the visitation order.
DISPOSITION
The orders are affirmed.
We concur: KLEIN, P. J. CROSKEY, J.