Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 01 CEJ 300200-1, Jane Cardoza, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, William G. Smith and Karen E. Butler, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Wiseman, J.
FACTUAL SUMMARY
Appellant Emily M., the mother of Austin O., a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j), appeals from a post-permanent plan order of the juvenile court suspending her right to make educational decisions for Austin and appointing Clovis Unified School District (Clovis Unified) as the entity responsible for those decisions. Dependency jurisdiction initially was invoked in November 2001 after the juvenile court found true the allegations that Emily had failed to protect Austin from physical abuse by Emily’s live-in boyfriend. Austin was in the third grade. The permanent plan ultimately adopted for Austin by the juvenile court was long-term foster care. Over the course of dependency, Austin has had several placements. Currently, he is in a foster home and attending an intermediate school. Although the court ordered monthly visits between Austin and Emily, Emily no longer has any contact with Austin.
All further references are to the Welfare and Institutions Code.
At the January 2006 review hearing, the social worker reported that Austin was having trouble in school in that he was not completing homework assignments and was not performing to his potential. Several steps had been taken to help in this regard. At the hearing, respondent Fresno County Department of Children and Family Services (Department) requested, and the court ordered, a mental health assessment and any needed treatment to help address Austin’s school performance problems.
In April 2006, Austin was moved to another foster home. The June 2006 review hearing report repeated the concerns about his educational progress. Austin’s mental health assessment resulted in a recommendation for therapy. At the hearing, the new foster mother raised the issue of who had the right to make educational decisions for Austin. The Department’s counsel stated that he would meet with the foster parents and decide whether there was a need to seek a change in orders regarding educational rights.
A section 388 petition was received by the court in August 2006, although it was not formally file-stamped until November 7, 2006. The section 388 petition asked the court to appoint Clovis Unified as the entity responsible for educational decisions and to suspend Emily’s rights to do so. The initial hearing on the section 388 petition was held in August 2006. Emily did not appear, although she had received notice of the section 388 petition and the hearing date. The matter was continued for unrelated reasons. At the October 2006 hearing, Emily again did not appear. Her attorney did appear and represented that she had not yet talked to Emily. Counsel later reported that she had conferred with Emily by phone and that they were going to set the matter for a contested hearing. The court instructed counsel to tell Emily that if she did not appear at the next hearing, they would proceed without her. Counsel agreed to do so.
At the next scheduled hearing on November 7, 2006, Emily again failed to appear. Counsel told the court that she had personally spoken with Emily and informed her of the hearing date and of the November 14 trial date. Counsel said that she had since called Emily several times without success and had written a letter to her without response notifying Emily again of the hearing and trial dates. Counsel stated that Emily had not contacted her in any manner. As a result, counsel withdrew the request for a contested trial and the matter was submitted. Austin’s attorney concurred in the petition’s request for a change in the educational rights status.
The trial court granted the section 388 petition and suspended Emily’s parental right to make educational decisions on behalf of Austin, appointing Clovis Unified as the entity responsible for those decisions.
DISCUSSION
A person with an interest in a dependent child may seek to modify a prior dependency court order on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The petitioning party must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b); In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 644, fn. 7.) Section 388 and the pertinent rule of court require that the petition demonstrate that the prior order should be altered. (Cal. Rules of Court, rule 5.570(a)(7) [§ 388 petition must contain “concise statement of any change of circumstance or new evidence that requires changing the order”]; In re Jasmon O., supra, 8 Cal.4th at p. 415.) We review the grant or denial of a section 388 petition under the abuse-of-discretion standard. (Ibid.)
Emily contends that the order suspending her right to make educational decisions for Austin and appointing Clovis Unified as the entity responsible for Austin’s education is not supported by any evidence and constitutes an abuse of discretion. (See People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 [finding of juvenile court unsupported by substantial evidence is necessarily an abuse of discretion].) She argues there is no evidence that 1) circumstances have changed or 2) it would be in Austin’s best interests to make Clovis Unified responsible for his educational decisions. Respondent counters that Emily has forfeited appellate review of the order by failing to challenge the order in the juvenile court and, in any event, the evidence supports the order.
Emily did not participate in the section 388 proceedings, despite notice of the petition and notice of the date set for trial. She was advised by her counsel that the matter would proceed without her if she did not appear. Despite ample opportunity, Emily refused to communicate with appointed counsel or attend the noticed hearings. As a result, counsel was required to withdraw Emily’s earlier request for a contested hearing. We agree with respondent that Emily should not be allowed to capitalize on her failure to participate in the trial. (See Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184; In re Richard K. (1994) 25 Cal.App.4th 580, 589-590 [parent waives right to challenge juvenile court’s order when parent submits matter on social worker’s recommendation; submission acts as endorsement of court orders and findings consistent with social worker’s recommendation].) Emily counters that she is not precluded from challenging the sufficiency of the evidence on appeal despite her lack of participation at trial, citing In re Ricardo L. (2003) 109 Cal.App.4th 552, 565, in support of her contention. Ricardo L., however, confirms that In re Richard K. states the appropriate rule when the order being challenged is not jurisdictional, as is the case here.
Alternatively, we conclude that the record supplies ample support for the court’s order. Initially, we address Emily’s contention that there was no evidence to support the petition, but only a “bald assertion” that it was necessary to terminate her educational rights to Austin. The Department’s petition, signed under penalty of perjury by the social worker handling the case, stated 1) there has been no prior order addressing educational rights; 2) Austin’s parents were not involved in Austin’s life; and 3) it was recommended that Austin undergo educational testing to determine if he is qualified for special education services. The petition then asked that Clovis Unified be appointed to make decisions regarding Austin’s education. (See In re Aaron R. (2005) 130 Cal.App.4th 697.) These allegations indicate that no one was taking responsibility for Austin’s educational decisions and that a decision regarding educational testing needed to be made. This is sufficient to establish a prima facie case that a change in the status quo was needed. (Cal. Rules of Court, rule 5.570 [§ 388 petition to be liberally construed in favor of its sufficiency].)
It was proper for the court to set the matter for hearing. (In re Jasmon O., supra, 8 Cal.4th at p. 415 [juvenile court will order hearing if § 388 petition presents any evidence supporting conclusion that hearing will promote child’s best interests].) In addition to the petition’s sworn assertions, the court had before it the dependency file and was free to consider its own records in deciding whether to grant or deny the petition. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 530 [any modification under § 388 must consider reason for dependency in the first place; presumes court will look at entire dependency file].)
This record contains evidence of two significant changes in circumstances supporting a conclusion that the order is in Austin’s best interests. First, when the initial dependency orders were issued, the court did not limit Emily’s educational rights and she maintained regular contact with Austin. Emily’s regular contact with Austin has since stopped. Emily had not seen him for over a year at the time of the section 388 hearing and has not had any contact with the Department during the same period of time. She did not show up for the January or June post-permanent plan review hearings. She made no attempt to participate in the section 388 proceedings. This conveys a remarkable lack of interest in Austin’s well-being. (See Guillermo G. v. Superior Court (1995) 33 Cal.App.4th 1168, 1172 [failure to participate belies assertion that parent is interested in child’s well-being or desires to preserve parental rights].) Her lack of participation in Austin’s life makes her incapable of making decisions about Austin’s education. She has no idea what his educational struggles might be since she has not had contact with him or those entities that have been required to step in to fill the parental void. (See § 361, subd. (a)(5) [decisions about education are based on best interests of child].)
Second, there is evidence that Austin’s educational struggles have worsened and he has not responded to prior interventions. In November 2005, there was a meeting with school officials to work on an intervention strategy, including special math help, a meeting with teachers, and a homework club. In January 2006, the social worker filed a report that said Austin continued to struggle with his schoolwork, was not turning in homework, and was not working up to his potential. At that point, the problem appeared to be motivational or, as Austin put it, “‘laziness disease.’” Austin’s academic struggles caused stress in his foster home and, in April 2006, Austin was moved to a new family. The June 2006 social worker report contains information similar to the January 2006 report, but includes a report dated May 2006, completed by Austin’s new foster mother, stating that Austin had been suspended from school and was placed on independent study status. She comments that, “[s]chool is hard for Austin.” Based on the comments of Austin’s social worker, made under oath in the petition, we infer that the school is now recommending testing to determine if Austin needs special education services. (Fresno County Dept. of Children & Family Services v. Superior Court, supra, 122 Cal.App.4th at p. 644 [all legitimate inferences are drawn to support order on appeal].)
Austin’s problems with school have worsened and initial attempts at intervention have not been successful. A new plan of action is required. Sadly, a void has been created by Emily’s lack of interest and the lack of a prior court order addressing educational needs. These changed circumstances are supported by the record and suggest that a new order is required.
Finally, there is evidence that appointment of Clovis Unified as the educational surrogate is in Austin’s best interests. (In re John F. (1994) 27 Cal.App.4th 1365, 1375-1376 [“Petitioner’s burden on a section 388 motion is to show by a preponderance of the evidence that modifying the extant order promotes the child's best interests”].) There has been a recent change in foster parents. It is reasonable to infer that Austin’s new foster parents would not be as familiar with Austin’s needs as the school district, which has worked with Austin on earlier interventions. Given the vacuum created by Emily’s withdrawal from Austin’s life and the change in foster parents, it is reasonable to infer that Clovis Unified is a more appropriate entity to make decisions related to Austin’s education, especially in the absence of any evidence suggesting the school district would act contrary to his best interests. We conclude there is no abuse of discretion.
Emily’s notice of appeal states that she is also appealing from the November 7, 2006, “Settlement Conference; regarding long term foster care .…” No issues regarding this conference or any resulting order have been identified, however, in the appellate briefing. We therefore consider these issues waived. (Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295 [failure to raise issue in opening brief constitutes waiver on appeal].)
DISPOSITION
The order of the juvenile court is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.