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In re D. B.

California Court of Appeals, Second District, First Division
Sep 25, 2008
No. B204864 (Cal. Ct. App. Sep. 25, 2008)

Opinion


In re D. B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, SHANNAYA B., Defendant and Appellant. B204864 California Court of Appeal, Second District, First Division September 25, 2008

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK 67173). Jan G. Levine, Judge.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.

ROTHSCHILD, J.

Appellant Shannaya B. appeals from the denial of her Welfare and Institutions Code section 388 petition and the order terminating her parental rights to her son, D.B. (born in 2005). She contends that the dependency court erred prejudicially and violated her due process rights by failing to consider her section 388 petition before terminating her parental rights. We disagree and affirm.

All undesignated code section references are to the Welfare and Institutions Code.

BACKGROUND

On January 2, 2007, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that Shannaya and maternal grandmother Violet F. were neglecting D.B. because they had not kept his immunizations current and had not obtained a primary physician for his care. When a DCFS caseworker investigated, she learned that Shannaya had left D.B. in Violet’s care while Shannaya was in Missouri, where she was then incarcerated. Shannaya had also left D.B in Violet’s care previously. While in Violet’s care most recently, D.B. had knocked over a hot iron causing serious burns to his face. The caseworker determined that Violet had not intentionally caused the injury. Violet expressed a desire to keep D.B. for an extended time while Shannaya obtained help for substance abuse and mental health problems. When the caseworker contacted Shannaya in Missouri by telephone, Shannaya denied that she had ever been diagnosed with a mental illness but acknowledged that she had been brought up in foster homes and juvenile detention centers herself, had lost parental rights to two older children, and had one child who had died of sudden infant death syndrome. Shannaya said that she left D.B. in Violet’s care after being arrested in Missouri.

The caseworker determined that Shannaya had neglected D.B. and failed to provide him with basic necessities, including medical care. The caseworker rejected placement with Violet as an option because in 1988, Violet had been convicted and sentenced to four years in prison for felony child abuse. Another relative proved similarly unsuitable because of a recent substantiated referral for general neglect of a child. D.G.’s father’s identity was unknown. The caseworker placed D.B. in foster care.

On January 8, 2007, DCFS filed a petition alleging counts under section 300, subdivisions (b) (failure or inability to adequately supervise or protect the child) and (g) (failure to provide for support of the child). Count b-1 alleged that Shannaya’s substance abuse had previously led to dependency jurisdiction and loss of parental rights over two of D.B.’s older sisters. Count b-2 alleged that Shannaya left D.B. with Violet without adequate provision for his care and supervision, and that she had a history of doing so. Count b-3 alleged that Shannaya endangered D.B. by leaving him with Violet, who had a long history with DCFS and the dependency court arising out of her “abuse and neglect of her own children.” Count b-4 alleged that Shannaya failed to provide D.B. with medical care, including regular examinations and immunizations. Count g-1 closely paralleled the allegations in count b-2. The dependency court ordered D.B. detained, set a jurisdictional hearing for January 31, 2007, and ordered reunification services for Shannaya, including parenting classes and drug rehabilitation, drug testing and counseling.

DCFS’s report for the January 31 hearing related that Shannaya denied having a current drug problem and told the case worker that she had completed a drug program, although she couldn’t remember when. She blamed the dependency system for her drug problem and maintained that not getting immunizations for children did not constitute neglect. Although the caseworker warned her that reunification would be difficult unless she returned to California, Shannaya said that she had no intention of returning. The caseworker noted that Shannaya quickly became verbally abusive and that she had a prior violent felony conviction in addition to arrests in both California and Missouri for domestic violence. DCFS recommended that Shannaya receive no reunification services and that a section 366.26 permanency hearing be set.

Shannaya did not attend the January 31, 2007 hearing, but her counsel was present. The dependency court dismissed count b-1 regarding Shannaya’s substance abuse but found all other counts true as alleged, sustained the petition, ordered no reunification services for Shannaya, and set a permanency hearing for June 14, 2007. The court denied reunification services pursuant to section 361.5, subdivisions (b)(10) (court previously terminated reunification services as to an older sibling of the dependent child because parent failed to reunify and did not subsequently make a reasonable effort to treat the problems that led to the older sibling’s detention) and (b)(11) (termination of parental rights over an older sibling with no subsequent reasonable effort to treat the problems that led to that termination).

On March 15, 2007, Violet called Shannaya on her cell phone in the presence of a DCFS caseworker to alert her about the June 14 hearing. Shannaya asked to speak with the caseworker and told her, “I’m not coming back to California even for the hearing because I’m not stupid and I know I’ll get arrested if I come, my attorney told me to come back too but I’m not, I want you guys to place [D.B.] with [Violet].”

On June 8, 2007, shortly before the permanency hearing, Shannaya called a DCFS caseworker and told the case worker that she could not afford bus or plane fare to return to California from Missouri, was living in a shelter, and had just started a new job from which she could not take time off for at least two or three months. The caseworker urged Shannaya to attend the upcoming hearing, but Shannaya indicated that she could not do so unless the hearing was postponed.

Shannaya did not attend the June 14 hearing but again appeared through counsel. The court granted DCFS’s request to continue the hearing. It set the review of permanency planning hearing for August 1, 2007, and the section 366.26 permanency hearing for October 17, 2007. Shannaya, contacted by telephone on June 14, 2007, stated that she would attend the October 17 hearing and again requested that D.B. be placed with Violet.

Shannaya was present at the October 17, 2007 hearing and told the court that she had moved back to California permanently. DCFS requested that the hearing be continued another month to resolve some lingering ICWA notice issues. The court continued the hearing to November 14. After the hearing, a DCFS caseworker provided Shannaya with information on available rehabilitation resources, including referrals for random drug and alcohol testing.

On November 9, 2007, Shannaya filed a section 388 petition alleging changed circumstances and requesting reunification services. Regarding changes, Shannaya stated, “I moved back to California to reunify with my child and I am now doing everything that the court ask of me in outpatient drug program parenting domestic violence drug testing seeking therapy[.]” As to why reunification services would be in D.B.’s best interest, Shannaya wrote, “It will give me a chance to get my son back who should be with his mom because I was all he knew.”

At the beginning of the November 14 hearing, the dependency court announced, “[Shannaya] has requested that we have a contest regarding the selection of the permanent plan for adoption for D.B.” Neither the court nor any counsel, including Shannaya’s, ever mentioned section 388. DCFS submitted on previously filed reports. Shannaya testified that she was D.B.’s sole caretaker for his first 10 to 12 months, she had returned from Missouri three or four months earlier and intended to stay in California, had been visiting D.B. twice a week since her return, had been drug testing, her most recent test was negative, and on October 26 had enrolled in a treatment program that provided parenting classes and counseling for anger management, domestic violence, and drug abuse. In argument, counsel for DCFS and for D.B. favored termination of parental rights and adoption; Shannaya’s counsel requested that D.B. be returned to Shannaya, who was living in Violet’s home. The court found that D.B. was adoptable, his return to Shannaya would be detrimental, and termination of parental rights would not be detrimental to D.B. The court observed that Shannaya had not maintained regular visitation with D.B. until recently and that her enrollment in the treatment program might have made a difference had she enrolled more promptly. The court terminated Shannaya’s parental rights and freed D.B. for adoption.

On December 5, 2007, at a hearing at which Shannaya was neither present nor represented by counsel, the court considered and denied her section 388 petition. The court noted on the petition that the section 366.26 hearing had occurred on November 14, and that the “court’s judicial assistant did not have the 388 petition before it until that day . . . and the minute order does not reflect that the court had the petition. Nevertheless, based on the items checked above, the court would not have granted the 388 in any event.” The checked items on form JV-180 included: “b. The facts do not support what is requested[;] c. The request does not state new evidence or a change of circumstances[;] d. The request does not show that it will be in the best interest of the child to change the order.”

On January 8, 2008, Shannaya filed a timely notice of appeal from “[t]ermination of rights on 11-14-07[.]”

DISCUSSION

Shannaya contends the dependency court violated her due process rights by failing to consider her section 388 petition before terminating her parental rights. She further contends that because her petition made the required prima facie showing, the court erred in failing to hold a hearing. Assuming for purposes of argument that the court erred by terminating Shannaya’s parental rights before considering her section 388 petition and that she did not waive the issue, we nonetheless conclude that any error was harmless and did not violate Shannaya’s due process rights because her petition did not make a sufficient showing to require a hearing pursuant to section 388.

A parent who petitions to modify an existing dependency court order under section 388 must show, by a preponderance of the evidence, both changed circumstances or new evidence and that the modification would be in the child’s best interest. (§ 388; Cal. Rules of Court, rule 5.570(a), (h); In re Casey D. (1999) 70 Cal.App.4th 38, 47, 48.) “A petition for modification must be liberally construed in favor of its sufficiency.” (Rule 5.570(a); see also In re Mary G. (2007) 151 Cal.App.4th 184, 205.) If, however, “the petition fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child, the court may deny the application ex parte.” (Rule 5.570(d).) In other words, “‘[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citation.]” (In re Mary G., supra, 151 Cal.App.4th at p. 205.) A petitioner must show changed circumstances; it is insufficient to show only changing circumstances. (Id. at p. 206; see also In re Casey D., supra, 70 Cal.App.4th at p. 47.) Moreover, to make a prima facie showing under section 388, the petition allegations must be specific regarding the evidence to be presented and must not be conclusory. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Section 388, subdivision (a) provides, in pertinent part, “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made[.]”

With these requirements in mind, we determine that Shannaya’s petition failed to make the required prima facie showing. Shannaya’s petition stated that she was doing all the court had asked of her in terms of rehabilitating herself, but she did not, and could not, claim to have completed, or even substantially completed, this transformation. Accordingly, her participation in the programs at her treatment center for less than one month amounted, at best, only to changing circumstances, not changed circumstances. (See In re Mary G., supra, 151 Cal.App.4th at p. 206.) Shannaya tacitly acknowledges this in her opening brief by stating that at the time the dependency court conducted the section 366.26 hearing before considering her section 388 petition, she “was in the process of legitimately rehabilitating herself and changing her circumstances.” (Italics added.) Moreover, her statements regarding both changed circumstances and D.B.’s best interest are unspecific and conclusory. (See In re Anthony W., supra, 87 Cal.App.4th at p. 251.)

Shannaya cites In re Hashem H. (1996) 45 Cal.App.4th 1791, but the case is distinguishable. In In re Hashem H., the mother lost custody of her son because of “numerous mental and emotional problems which prevented her from regularly caring for [him]” and a filthy, unsanitary home. (Id. at pp. 1793-1794.) Four years later, and one week before a section 366.26 hearing, the mother filed a detailed section 388 petition alleging that she had a job, was ready to care for her son, had visited him regularly since his detention, and, most crucially, had participated successfully in psychotherapy and counseling for more than a year and a half. (Id. at pp. 1796-1797.) In support of her claim of successful psychological treatment, the mother attached a letter from her therapist recommending that the mother regain custody of her son. (Id. at p. 1798.) The dependency court ruled that the mother had not shown changed circumstances because she had not completed her program of therapy. (Ibid.) Division Four of this appellate district reversed, holding that the mother had made a prima facie showing of changed circumstances. (Id. at p. 1800.)

Unlike the mother in In re Hashem H., Shannaya’s petition did not support her claim of changed circumstances. Indeed, her testimony at the section 366.26 hearing showed that she had enrolled in her treatment program a mere three weeks before the section 366.26 hearing and had visited D.B. only for a few months.

Even assuming that the court’s failure to consider Shannaya’s section 388 petition before holding the section 366.26 hearing was error, we conclude that any error was harmless. Our Supreme Court has held that in dependency matters, it is appropriate to apply the Watson standard, “permitting reversal [for error] only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60; see also People v. Watson (1956) 46 Cal.2d 818, 836.) Shannaya acknowledges that the evidence she would have offered at a section 388 hearing is the same as the evidence she actually presented at the 366.26 hearing. Considering that evidence, it is not reasonably probable that Shannaya would have enjoyed a better result had the dependency court considered her petition before the permanency hearing.

DISPOSITION

The orders are affirmed.

We concur: MALLANO, P. J., WEISBERG, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re D. B.

California Court of Appeals, Second District, First Division
Sep 25, 2008
No. B204864 (Cal. Ct. App. Sep. 25, 2008)
Case details for

In re D. B.

Case Details

Full title:In re D. B., a Person Coming Under the Juvenile Court Law.

Court:California Court of Appeals, Second District, First Division

Date published: Sep 25, 2008

Citations

No. B204864 (Cal. Ct. App. Sep. 25, 2008)