Opinion
A156929
02-24-2020
In re S.W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G.W. ET AL., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ14023615)
Appellants were de facto parents of minor S.W. (Minor) in dependency proceedings below, during which the Alameda County Social Services Agency (agency) filed a petition pursuant to Welfare and Institutions Code section 388 , seeking to have Minor placed with her half-sister, who was de facto parent to Minor's two siblings. The juvenile court held a hearing on the question of whether the petition made a prima facie case sufficient to trigger a full evidentiary hearing, and concluded that it did. Appellants contend that the juvenile court erred in not permitting their counsel to present argument on that issue before deciding it. We disagree, and we affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
This appeal arises out of dependency proceedings for Minor, born in September 2014. Minor has two siblings, I.W. and D.W., and an adult half-sister, Kaia W.
At some point not clear from the record, Minor was removed from her parents and on August 6, 2018, placed with her maternal great aunt and uncle, appellants Gerald W. and Rebecca W. (the Ws). At another point unclear from the record, the Ws were granted de facto parent status with respect to Minor. Meanwhile, Minor's siblings were placed with their adult half-sister, Kaia W., who was granted de facto parents status as to them.
A hearing under section 366.26 was set for March 8 and 21, 2019.
On March 7, the agency filed a section 388 petition on a JV-180 form, requesting that the juvenile court change its August 6, 2018 order placing Minor with the Ws and instead place her with her adult half-sister, Kaia W. and her two siblings. The next day, Kaia W. filed her own section 388 petition, requesting that her visitation with Minor be increased and that Minor be placed with her, so that Kaia W. could adopt Minor along with her brother and sister.
At the hearing held March 21, the juvenile court stated it would address whether the agency's March 7 section 388 petition had made the required prima facie showing to warrant an evidentiary hearing, and counsel for the agency argued that it had. At the conclusion of her argument, agency counsel also took the position that de facto parents did not have standing to present argument to the court regarding whether the petition made the required prima facie showing. The juvenile court responded:
The record does not contain a transcript of the hearing set for March 8. --------
"THE COURT: Thank you. [¶] We have de facto parents present here. The Court takes the position that they are not entitled to weigh in with argument on the sufficiency showing in the 388 petition that does not directly involve them or has been brought by them, I should say. But I will give the de facto parents' counsel an opportunity if they disagree."
The Ws' counsel then argued that she should be permitted to present argument on the question of whether the petition had made a showing sufficient to warrant an evidentiary hearing. Afterward, the juvenile court found that the agency's March 7 petition had made a sufficient showing to warrant an evidentiary hearing, and indicated that he would hold that hearing at the same time as the already scheduled section 366.26 hearing. The court concluded as follows:
"THE COURT: Okay. Before I move on to [Kaia W.'s petition] I do want to have a discussion about the level of involvement of de facto parents in the JV-180 now that I have determined that it's entitled to an evidentiary hearing. Let me give all parties an opportunity to state their position. I will tell you mine and my current intention and allow you all to make a record.
"Mind you, that de facto parents don't have a right to participate in argument, certainly as just revealed—not on the issue of whether or not an evidentiary hearing is appropriate. At the hearing, itself, it is my view that de facto parents get to participate. [California Rules of Court, rule 5.534(a)] that was cited earlier sets forth that level of participation. It does not add significant detail. I believe that falls within the province of the Court. I will exercise my discretion to allow de facto parents to be represented, to present their own evidence and to cross-examination. At this point before all of the evidence is in I am not inclined to allow de facto parents the opportunity to argue at the end of this case the issues I am asked to decide, but I will give those de facto parents an opportunity to argue otherwise at the end of the hearing contrary and a record to protect your client's interests."
After further argument from counsel regarding whether counsel for de facto parents should be permitted to present argument, the court concluded:
"THE COURT: Thank you. I appreciate all of the statements. I also appreciate the responsibilities and rights of de facto parents, which is why my position is to permit the de facto parents to fully participate in these hearings. I have to stop short on the issue of argument. However, because my view is that argument is for the benefit of the Court, if the record evolves in such a way that I think at the end of the proceedings that I could benefit from those perspectives we will again have argument on whether or not it's appropriate for me to have argument from de facto parents, because it might help me to make a decision, a better decision."
After concluding that Kaia W.'s section 388 petition also warranted an evidentiary hearing, the court then set several dates for a combined hearing under section 366.26 and on the two section 388 petitions in late April and early May.
The Ws filed a notice of appeal from the juvenile court's order denying them the opportunity to present argument as to whether the section 388 petitions warranted an evidentiary hearing.
DISCUSSION
On appeal, the Ws argue that the juvenile court erred in not permitting their counsel to argue that the agency's section 388 petition did not make a prima facie showing sufficient to trigger an evidentiary hearing.
Under section 388, a parent or other person having an interest in the child may petition to change or set aside a prior order "upon grounds of change of circumstance or new evidence," and the juvenile court shall order a hearing where "it appears that the best interests of the child . . . may be promoted" by the new order. (§ 388, subds. (a)(1) & (d); see also Cal. Rules of Court, rule 5.570(a).) Thus, a petitioner under section 388 must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808; In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
"[A] petition must be liberally construed in favor of its sufficiency," (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414), and a petitioner "need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799.) A prima facie case is made if the allegations demonstrate that the two elements are supported by probable cause; the petitioner is not required to establish a probability of prevailing on the petition. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1414.) If a hearing is held, the burden is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Finally, we will reverse the juvenile court's order only if it is reasonably probable that the result would have been more favorable to the Ws but for the alleged error. (See Cal. Const., art. VI, § 13; In re Celine R. (2003) 31 Cal.4th 45, 59-60; In re Alayah J. (2017) 9 Cal.App.5th 469, 481-482; In re Hector A. (2005) 125 Cal.App.4th 783, 798-799.)
We need not decide whether the juvenile court erred in not permitting the Ws' counsel to present argument at the prima facie stage of the agency's section 388 petition because the Ws have failed to establish any prejudice.
The Ws assert that granting a hearing was prejudicial because it "moved the case a giant step forward to separating the Ws from the child who regarded them as her parents." But this "giant step" was not prejudicial in and of itself—it could only even arguably become so if it led to the petition being granted at the full evidentiary hearing on the merits scheduled for April and May of 2019. The record does not contain a transcript of that hearing, and the parties do not indicate in their briefing how the court ultimately ruled on the petition—a ruling that the Ws evidently did not appeal. The Ws have not carried their burden to demonstrate prejudice. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 417, p. 476 ["The burden is on the appellant, not alone to show error, but to show injury from the error"].)
Furthermore, in contending that the alleged error was prejudicial, the Ws offer several arguments going to the merits of the agency's section 388 petition, including that the various "changed circumstances" relied upon by the agency were not really changed circumstances at all. But the trial court expressly stated that at the full evidentiary hearing to be held on the merits, the Ws would be allowed to "fully participate," including by being represented by counsel, presenting evidence, cross-examining witnesses, and if the court concluded it would be helpful, by presenting argument. The Ws were therefore presumably able to advance their arguments going to the merits of the section 388 petition at the evidentiary hearing. If they had meritorious arguments that the agency had not even made the prima facie showing required to trigger a hearing in the first place, those arguments would likewise have prevailed at a full hearing on the merits, where the agency was required to prove that the elements of the petition were supported not just by probable cause, but by a preponderance of the evidence. (See In re Jeremy W., supra, 3 Cal.App.4th at p. 1414; In re Stephanie M., supra, 7 Cal.4th at p. 317.) Under these circumstances, we conclude that the Ws have not met their burden to demonstrate prejudice from the alleged error.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.