Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK61496, Steven L. Berman, Juvenile Court Referee
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Linda F., former foster mother of D.R., appeals from the juvenile court’s order summarily denying her petition under Welfare and Institutions Code section 388 seeking return of the minor to her custody. Because appellant failed to make a prima facie showing of changed circumstances, the juvenile court properly denied her petition without a hearing. We affirm.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
To support her factual assertions, appellant’s opening brief cites primarily to her own declaration appended to her brief. We granted respondent’s motion to strike this declaration from the record on the ground that it was not presented to the juvenile court.
Minor D.R. came to the attention of the Los Angeles County Department of Children and Family Services (the department) following his birth in May 2005. His mother, who was 15 years old and suffering from conduct disorder, was on probation for burglary and prostitution, and did not feel that she was capable of caring for a newborn. She agreed to a voluntary case plan with the department and that D.R. be placed in foster care. Appellant alleges that D.R. was placed in her custody on September 13, 2005, when he was four months old. The department subsequently filed a dependency petition on D.R.’s behalf on November 18, 2005, when mother went “AWOL” from her probation placement. D.R. was declared a dependent of the juvenile court on May 18, 2006.
For two years D.R. remained in the custody of appellant and her husband. During that time, the department reported that D.R. was “thriving well” with appellant, that she was providing him with “excellent care, love and supervision,” and that she and her husband wished to adopt him. D.R. was not the easiest baby to care for; he frequently cried after eating, playing, bathing and waking up. He was referred to a mental health unit, but was too young to be seen. He also had a club foot, which required doctor visits and wearing casts.
Appellant asserts on appeal that D.R. was removed from her custody on October 5, 2007 due to an allegation of domestic abuse between her and her husband. There is nothing in the record before us regarding the circumstances surrounding D.R.’s removal.
On October 9, 2007, appellant filed a section 388 petition in pro per. She stated she sought to modify orders made on September 13, 2005. As to any changed circumstances she stated, “No changes. I still want to adopt [D.R.].” Appellant further stated that replacing D.R. in her home would be in his best interest because he had been with her since he was four months old and she was the only mother he had known, her home was the only home he had known and all of his belongings were there, his welfare was her first priority, and “[h]e is a very cranky baby that needs my ongoing love and care. I have helped my baby to come a very long way through his difficult problems.” Appellant checked the box on the preprinted petition indicating the court could make a decision without a hearing. She did not attach any supporting documentation or declarations.
On October 11, 2007, the juvenile court summarily denied appellant’s petition by checking a box indicating that the petition did not state new evidence or a change of circumstance. A letter from the court sent to appellant advising that the petition had been denied stated that the best interest of the minor would not be promoted by the proposed change of order. This appeal followed.
DISCUSSION
I. Section 388.
Section 388, subdivision (a) allows a parent or “other person having an interest in a child who is a dependent child of the juvenile court” to petition the court for a hearing to change, modify or set aside any previous court order or to terminate jurisdiction “upon grounds of change of circumstance or new evidence.” Under subdivision (c), if it appears that “the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).) There is no dispute that as D.R.’s former foster mother, appellant is a “person having an interest” in him.
A section 388 petition is to be liberally construed in favor of granting a hearing to consider a petitioner’s request. (Cal. Rules of Court, rule 5.570(a).) The petitioner need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) “‘“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. [Citation.]” [Citation.]’” (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) “There are two parts to the prima facie showing: The [petitioner] must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [“section 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition”].) If a petitioner presents any evidence that granting the petition would promote the best interest of the child, the court must order a hearing. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) But if 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 interest of the child, the dependency court need not order a hearing. (In re Zachary G., supra, at pp. 806–807; Cal. Rules of Court, rule 5.570(d).)
To warrant a hearing, “[t]he petition may not be conclusory. ‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted”].)
II. Standard of Review.
We review a juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re Aaron R., supra, 130 Cal.App.4th at p. 705; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) Under this standard, a reviewing court must uphold the trial court’s decision unless it determines from the record that the decision exceeded the bounds of reason. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) “‘“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.” [Citations.]’” (Ibid.)
II. The Court Did Not Abuse Its Discretion in Denying a Hearing on Appellant’s Section 388 Petition.
As an initial matter, we note that appellant’s section 388 petition does not challenge a specific order of the juvenile court. Appellant identified “September 13, 2005” as the date of the order she wished to have modified. But the record contains no order dated September 13, 2005, which predates the filing of the dependency petition. Instead, September 13, 2005 is the date appellant alleges that D.R. was placed in her custody. Thus, there is no order in the record before us regarding D.R.’s removal from appellant’s custody. On appeal, appellant cites to two cases for the proposition that prior to the termination of parental rights, juvenile courts retain authority to ensure that minors’ placements are suitable. But In re Robert A. (1992) 4 Cal.App.4th 174 does not address section 388, and in Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, the section 388 petition challenged a specific order. Even assuming that appellant’s petition can be construed as challenging an existing order or is otherwise the appropriate mechanism for challenging D.R.’s removal, we find no abuse of discretion in the summary denial of her petition.
Appellant’s petition did not allege any changed circumstances or new evidence. Indeed, the petition did not even allege that D.R. had been removed from her custody. That he was removed only becomes obvious based on appellant’s request that he be replaced in her home. There are simply no allegations regarding the removal—nothing addressed to the timing of the removal, the reasons for the removal and, most importantly, whether those reasons had been ameliorated. Nor was there any other evidence before the juvenile court regarding D.R.’s removal. It would appear that appellant’s petition was the first time the court became aware of the removal. On appeal, appellant claims that the changed circumstance was that she was not permitted to visit D.R. after his removal, but there is nothing in the petition addressed to the issue of visitation. Appellant only requested that D.R. be returned to her custody.
In light of appellant’s failure to make a prima facie showing of changed circumstances or new evidence, the juvenile court acted well within its discretion in summarily denying her petition without a hearing.
DISPOSITION
The order summarily denying appellant’s section 388 petition is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.