Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 1707-DEP.
MARGULIES, J.
Minor Erin R.’s non dependent brother, Richard R., appeals from the denial of his petition under Welfare and Institutions Code section 388 for home visits with Erin in the home he lives in with Erin’s father (Father). Father’s parental rights as to Erin had been terminated in 2005. The juvenile court denied the petition without an evidentiary hearing, based on briefs and declarations filed by Richard, the Sonoma County Human Services Department (the Department), and Erin’s counsel. Richard and Erin’s appellate counsel contend that the trial court erred in not requiring an evidentiary hearing. We find no error or abuse of discretion and affirm the juvenile court’s orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
A. Termination of Parental Rights
Erin was born in November 1995. Her brother, Richard, was born in May 1997. On March 28, 2003, the juvenile court detained the children after receiving new reports of abuse and neglect by their parents. The record disclosed a history of such reports, dating back to 1998.
The Department filed petitions pursuant to section 300. As subsequently amended, the petitions alleged, among other things, that Father had witnessed physical assaults on the minors by their mother and failed to protect them. At the jurisdiction hearing, the parents submitted on the Department’s report and recommendation that the petitions be sustained. The court sustained the amended petitions, declared the children dependents of the court, and ordered reunification services for the parents.
Richard and Erin were originally placed together in a foster home. They were moved together three times to new foster placements due in part to Erin’s disruptive and oppositional behaviors. By the 12-month review, psychologist Kathy Dark was recommending that the children be separated due to their different needs. Dr. Dark believed that Richard needed nurturing and attention while Erin required tight structure and discipline to create a feeling of safety so that she did not have to have control. Erin was moved to a group home in February 2004.
Between the 12- and 18-month reviews, Father failed to report to the Department that mother had hit Erin during a visit, which led to an immediate curtailment of visits. At the 18-month review hearing, the court terminated reunification services for Erin and set a section 366.26 permanency planning hearing for her. In Richard’s case, the court ordered the Department to begin trial visits with the Father and to institute a plan to transition him back into Father’s home. All reunification services for mother were terminated. Father and mother had separated early in the dependency proceedings, and father had a new job and a new fiancée, Sarah L. Richard’s trial home visit was successful, and his dependency was eventually dismissed.
Before the section 366.26 permanency planning hearing for Erin, Father filed a section 388 modification petition asking the court to allow Erin to return home on a trial visit and to vacate the section 366.26 hearing. He cited the juvenile court’s decision to return Richard to Father’s home and the progress Father demonstrated in the Department’s trial home visit report as per se indicators of change of circumstances. Father also cited Erin’s bond with her brother. Erin’s section 366.26 report, dated April 7, 2005, recommended termination of parental rights and adoption. At Father’s request, the court approved a bonding study to address Erin’s relationship with mother and Father, her proposed adoptive parents, and her brother Richard.
Erin was placed in the home of Mr. and Mrs. W. in June 2005. Mrs. W. was a preschool teacher at Erin’s school to whom Erin had developed an attachment. The W.’s expressed interest in adopting Erin if she could not return to her father.
Following a combined trial, the juvenile court denied Father’s section 388 petition and selected adoption as the permanent plan for Erin. The juvenile court found that none of the exceptions to adoption applied and that there were no barriers to adoption by the W.’s or “another person if the W[.’s are] no longer available.” The court found that Erin lacked basic trust in either parent, did not have a positive emotional attachment to either parent, and did not perceive either parent as being able to protect her or provide for her needs on a consistent basis. While recognizing that Father had made great strides in ameliorating the issues that had led to Erin’s dependency, the court also found that Erin’s early years had caused her lasting emotional damage, and that Father lacked the ability to provide the type of structure, boundaries, and sense of safety that she required.
Regarding Erin’s relationship with Richard, the court found that Erin’s loving feelings toward Richard were mixed with anger, and that she was sometimes controlling and mean to him. Relying on the testimony of expert witnesses including an adoption specialist, Erin’s psychotherapist, and the clinical psychologist who had performed the bonding study, the court found that Erin played a parental role toward Richard that interfered with her own emotional health.
The court found that it was not in Erin’s best interest that she be returned to her father, even on a trial basis. It terminated Father’s parental rights and set adoption as the permanent plan. Both parents appealed. This court affirmed the juvenile court’s orders in December 2006. (In re Erin R. (Dec. 29, 2006, A112531) [nonpub. opn.].)
Richard filed motions on appeal that we (1) take judicial notice of the transcripts in the previous appeal, case No. A112531; (2) take judicial notice of the legislative history of certain sibling contact provisions in the Welfare and Institutions Code; and (3) consider post-appeal evidence regarding Erin’s second failed adoptive placement. We deferred a decision on these requests and now grant the request for judicial notice of the transcripts in the earlier appeal, and of the fact that Erin’s second placement failed. We deny Richard’s other requests.
B. February 2007 Modification Petition
In December 2006, Erin’s adoptive placement with the W.’s failed and she was returned to the Valley of the Moon Children’s Home (VOMCH) until a suitable adoptive home could be found. While Erin was residing with the W.’s, her visits with Richard had been limited to one hour of supervised visitation per month. After moving to VOMCH, Richard and Erin were permitted unlimited telephone contact and increased visitation.
On February 6, 2007, Richard filed a “Request to Change Court Order” (form JV-180) pursuant to section 388. The materials filed in support of the request cited and sought relief under both subdivisions (a) and (b) of section 388. The order Richard requested be changed was the order terminating Father’s parental rights and setting adoption as the permanent plan. The request also referred to the limited visitation he had been allowed while Erin was living with the W.’s. The changed circumstances cited in the request were that: (1) the adoption by the W.’s had fallen through; and (2) Richard was now in regular contact with Erin.
Section 388, subdivision (a) requires a prior court order that is sought to be modified. Subdivision (b), which may only be asserted by persons claiming a sibling relationship with the dependent child, does not require a prior court order. The two subdivisions read in relevant part as follows: “(a) 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 . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [¶] (b) Any person . . . may petition the court to assert a relationship as a sibling related by blood . . . [to] a dependent of the juvenile court, and may request visitation with the dependent child . . . or consideration when . . . implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child.”
The new order Richard requested was as follows: “That Erin [c]ommence a trial home visit with [Richard] and . . . [Father]. That such visit commence with weekend stays and progress to a full trial home visit.” The request explained that the proposed order would be better for Erin because she was currently living in a group home and her “best interest would be to live in the same household as petitioner and be under the care of petitioner’s [father] and his new wife, Sarah.”
To the extent that his modification request sought to change the order terminating Father’s rights, Richard concedes that such a modification was not required by any facts or circumstances in existence at the time his request was before the juvenile court.
In support of his petition, Richard attached declarations from his attorney, his father, and his stepmother, Sarah. Sarah’s declaration explains how and when she was informed that Erin’s adoption had fallen through, and describes the increased visitation that had taken place between Richard and Erin in the ensuing period. However, the declarations largely focus on the reasons that Erin should be reunified with Richard’s family. The declarants discuss the positive changes that had taken place in Father’s life, difficulties that Erin was assertedly having with her separation from Father, Richard’s belief that Erin desired to live in the same home with him, and Richard, Father, and Sarah’s desire that Erin live with them. The declaration of Sarah and the attorney also recount unexplained actions of Erin’s social worker, Betty Johnson, to prevent Father from having two visits with Erin that had originally been discussed in October 2006.
In his declaration, the attorney averred that he represented the entire “R[.] family” consisting of Richard and his father and stepmother. Father and Sarah each state in their declarations that they had retained the attorney “to assist in petitioning the Court for modification to the current plan of adoption.”
On February 9, 2005, the juvenile court checked box No. 13.b. on form JV-180, which states: “The judge will not hold a hearing. The judge will make a decision based on your request and any other papers filed by [the Department or the minor]. You . . . may ask for a hearing, which the judge will hold if there is good cause.”
Richard’s attorney promptly submitted a brief requesting a hearing. Counsel asserted that Erin had been “abandoned by her intended adoptive parents and is now a legal orphan.” He complained that the social worker who had argued to terminate Father’s parental rights had “refused to acknowledge the error of her judgment . . . and continues to refuse to reconsider the reunion of petitioner with his sister.” The brief asserted that Erin had demanded to see her father while still living with Mr. and Mrs. W. (apparently referring to the discussions about arranging visits that began in October 2006), and the social worker’s refusal to allow the visits to occur. The brief concluded by stating that “[t]he Court should grant a hearing to vet the intransigent position of [the Department] and the social worker assigned to Erin . . . and provide the R[.] family an opportunity to present their case to this Court.” Although the brief made passing reference to visitation with Richard, its focus was on the Department’s perceived opposition to Erin’s reunification with her “biological family” who, according to counsel, had been “fighting to see her for over a year and a half.”
The Department filed written opposition to Richard’s request for a hearing, which included a declaration of Betty Johnson. The Department argued that Richard had failed to make a prima facie showing required to warrant a hearing on his modification petition. Regarding the claim of changed circumstances, the Department stated that although the first adoptive placement had failed, Erin had “recently been placed in a new adoptive home and adoption continues to be the most appropriate permanent plan for her.” The Department further asserted that Richard had presented no evidence regarding how a trial visit would be in Erin’s best interest. Other than his own unsubstantiated belief about Erin’s wishes, the only evidence Richard had submitted to the court was that he apparently wanted her to live with him. But, according to the Department, this case is about Erin’s best interests, not Richard’s. On that issue, the Department insisted that Richard had failed to meet his prima facie burden: “Given the history of the case and the substantial evidence presented at the section 366.26 hearing regarding Erin’s needs and the nature of the relationship between Erin and [Father], the section 388 petition fails to make the required showing that the proposed modification is in Erin’s best interest.”
Erin was placed in a new adoptive home on January 31, 2007.
The Johnson declaration included the following assertions of fact: The idea for arranging two visits between Erin and Father did not come from Erin but arose from discussions between Johnson and Mrs. W. in approximately October 2006. They discussed the fact that Erin was having trouble bonding with Mr. W., and that this might be because Erin had not had closure with Father following the termination of parental rights. Father had previously refused to have supervised visits with Erin. Johnson contacted Legal Services to look into making arrangements for two supervised visits between Erin and Father. A visit had not been arranged by the time Erin’s placement with the W.’s failed. Once Erin was living in VOMCH, Johnson no longer believed it was in Erin’s interest to visit with Father, and Johnson had no further contact with Legal Services on this subject after December 2006.
Johnson further stated that she authorized increased visits and unlimited telephone contact between Erin and Richard when she was admitted to VOMCH due to Erin’s disappointment regarding the failure of her adoptive placement. VOMCH staff told Johnson that all of the ensuing telephone calls were initiated by Richard, none by Erin. Johnson learned that the R.’s were petitioning the court for trial home visits and that Richard was asking Erin inappropriate questions during their telephone calls about where she would live. As a result, when Erin was placed in a new adoptive home on January 31, Johnson stopped allowing the calls and reduced Richard’s supervised visits with Erin back to once per month.
Richard responded to the Department’s opposition, in part, by disputing certain facts asserted in Johnson’s declaration and accusing her of practicing bad faith and possible perjury in an effort to bolster the Department’s “intransigent position.” An accompanying declaration by Richard’s attorney asserted that he had been informed by a legal services supervisor, Toni Novak, that Johnson had called legal services on January 4, 2007 to advise that Erin had been returned to VOMCH and the “case was closed for visitation.” Then, on January 18, according to counsel, the Department faxed a letter of authorization for a one-hour visit between Erin and Father. Novak contacted Father and made arrangements for a supervised visit with Erin. Four days later, Johnson called her to cancel the supervised visit and request that the file be closed, without offering a reason.
In his reply to the Department’s opposition, Richard argued that “Ms. Johnson’s misleading, if not perjurious, declaration should give the Court pause as to her conduct, motivation and whether she is acting in the best interest of Erin.” The reply also emphasized the efforts of Father “to reunite Erin with her brother and his new family” and Father’s “determination to not give up on his daughter.” Richard’s counsel asked the court to hold an evidentiary hearing in order to hear Novak’s testimony, investigate Johnson’s asserted bad faith, vet the Department’s intransigent position, and provide the “R[.] family an opportunity to present their case . . . .”
Erin’s counsel opposed Richard’s request for a hearing, arguing that his petition failed to state any basis in fact or law for a trial home visit. She characterized the petition as “a thinly veiled attempt by the father who has failed at reunification and who has had his parental rights terminated to . . . regain custody as if he could turn back the clock to begin the reunification process all over again.” Erin’s counsel took the position that no reasons had been shown for revising the conclusions of the earlier proceedings that Erin did not perceive Father as being able to protect her or provide for her needs, her relationship toward Richard was parental and not positive for her emotional development, and adoption was in her best interests.
The juvenile court denied Richard’s modification petition without an evidentiary hearing on March 16, 2007, checking the box on form JV-180 stating that “[t]he request does not show that it will be in the best interest of the child to change the order.”
C. March 2007 Reconsideration Motion
On March 26, 2007, Richard filed a Motion to Reconsider Order Regarding Request for Modification and Request for Hearing with accompanying declarations from Toni Novak and Sarah. The motion focused primarily on the cutoff of Richard’s visitation, and sought an order from the court compelling the Department to grant increased visitation. In the alternative, the motion sought a psychological evaluation or bonding study to reevaluate “what is in [Erin’s] best interest” in light of the failure of Erin’s first adoptive placement and the stabilization of the R.’s nuclear family. Citing Novak’s declaration, Richard also claimed these were evidence that Johnson had submitted a perjurious declaration and that her judgment as to Erin’s best interests was not to be trusted.
The Novak declaration stated that Legal Services had contacted Johnson on January 4, 2007 to check on Erin’s status and was informed that she had been transferred to VOMCH and that the case was closed. On January 19, she received a fax from Johnson authorizing a one hour visit between Erin and Father. Novak attached a copy of the fax to her declaration. Four days later, Johnson called her to cancel the visit and ask that the file be closed, which Novak found to be “unusual” in her professional experience.
Sarah stated in her declaration that she had contacted Johnson in early February 2007 to request that Richard continue to be allowed to telephone Erin. Johnson told her that no telephone contact would be permitted until Erin had been in her new prospective adoptive home for at least 30 days. Sarah was informed by Erin’s adoption specialist on March 8 that it had been decided Richard should have no contact with Erin for a minimum of 90 days.
The juvenile court denied Richard’s motion to reconsider the decision to hold no hearing on his section 388 petition, and denied the request for reconsideration of the petition. Richard timely appealed the court’s denial of his section 388 petition and of his request for a hearing on the petition.
D. August 2007 Proceedings
In August 2007, Richard again petitioned under section 388, this time seeking an order: (1) allowing him weekly visits and unlimited telephone communication with Erin to be followed up by an evaluation for unsupervised weekend visits, and (2) enjoining the Department from unilaterally terminating his visitation with Erin in the future. In order to consider the Department’s claim that the present appeal is partially mooted by the August 2007 proceedings, this court granted the Department’s motion that we take additional documentary evidence on appeal consisting of copies of: (1) the August 2007 petition, (2) a reporter’s transcript of the hearing on the petition, and (3) a minute order reflecting the court’s rulings. (Code Civ. Proc., § 909; In re Karen G. (2004) 121 Cal.App.4th 1384, 1389.)
The juvenile court ruled in relevant part as follows: “[The] Court does not find sufficient evidence to grant an evidentiary hearing re 388 Petition. Court orders the following contact between minor [and] Richard: weekly supervised telephone contact—10 [to] 15 minutes [and] supervised visits increased to 2 hours monthly.” At the hearing, the court made it clear that the Department would have to seek a further court order before it could again reduce visitation.
The juvenile court’s disposition of the August 2007 petition is the subject of another pending appeal in this court, case No. A118993.
II. DISCUSSION
The procedures to be followed in deciding a petition for modification are set forth in California Rules of Court, rule 5.570. The pertinent provisions of that rule are as follows: “(a) . . . [¶] A petition for modification must be liberally construed in favor of its sufficiency. . . . [¶] (b) . . . [¶] A petition under Welfare and Institutions Code section 388 must be made on form Request to Change Court Order (form JV-180). [¶] . . . [¶] (d) Denial of hearing [¶] If 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. [¶] (e) . . . [¶] If the petition states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order or termination of jurisdiction, the court may grant the petition after following the procedures in (f) and (g). [¶] (f) Hearing on petition [¶] If all parties stipulate to the requested modification, the court may order modification without a hearing. If it appears to the court that the requested modification will be contested or if the court desires to receive further evidence on the issue, the court must order that a hearing on the petition for modification be held within 30 calendar days after the petition is filed. [¶] (g) Notice of petition and hearing . . . [¶] The clerk must cause notice of the hearing to be given to the persons and in the same manner prescribed by rule 5.524. The present custodian of a dependent child . . . must be similarly notified. [¶] (h) Conduct of hearing . . . [¶] (1) The petitioner requesting the modification under section 388 has the burden of proof. . . . [Certain specified requests require proof by clear and convincing evidence.] All other requests require a preponderance of the evidence to show that the child's welfare requires such a modification. [¶] (2) The hearing must be conducted as a disposition hearing under rules 5.690 and 5.695 if: [¶] (A) The request is for removal from the home of the parent or guardian or to a more restrictive level of placement; or [¶] (B) There is a due process right to confront and cross-examine witnesses. [¶] Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.”
References to rules are to the California Rules of Court.
As explained in Erin’s brief to this court, all parties in the juvenile court appear to have assumed incorrectly that the court summarily denied a hearing on Richard’s modification request under rule 5.570(d). In fact, read in conjunction with subdivisions (d), (f), and (h)(2) of rule 5.570, paragraph No. 13 of form JV-180 is ambiguous as to the various possible meanings of the word “hearing” used therein. (See In re C.J.W. (2007) 157 Cal.App.4th 1075 [form JV-180 and rule 5.570 are “hopelessly inconsistent” regarding whether and how a hearing will be conducted].)
Paragraph No. 13 of form JV-180 is ambiguous as to whether the court is or is not ordering a hearing to be held with the parties present, and is silent as to whether or not such hearing, if held before the court, would allow the introduction of evidence. The paragraph states: “The best interest of the child may be promoted by the requested new order, and either (a) the request states a change of circumstances or new evidence, or (b) the request has been filed for the purpose of asserting a brother or a sister relationship with the child. A hearing shall be held on the request as follows: [¶] a. [checkbox] The matter is set for a hearing on [spaces provided to write in the date, time, and court department]. [¶] b. [checkbox] The judge will not hold a hearing. The judge will make a decision based on your request and any other papers filed [by the Department or the minor]. You and [the Department or the minor] may ask for a hearing, which the judgment will hold if there is good cause.” (Italics added.)
However, by checking box No. 13.b. stating that it would make a decision based on the moving papers and any papers filed by the Department or the minor, it seems clear at a minimum that the court in this case was not denying the request summarily and ex parte, as contemplated by rule 5.570(d). Instead, it was apparently proposing to decide the petition following the type of hearing based on “declaration and other documentary evidence” contemplated by rule 5.570(h)(2). Under that procedure, the petitioner may, if he chooses to, attempt to demonstrate that there is good cause to conduct a full evidentiary hearing.
Thus, the procedural issue framed by this appeal is whether the trial court abused its discretion in denying an evidentiary hearing on Richard’s request for a modification. Although Erin’s juvenile court counsel opposed any hearing on the modification request, her appellate counsel now maintains that the juvenile court abused its discretion in failing to provide a full evidentiary hearing. Richard joins in the latter arguments.
Before deciding the procedural issue, it is critical to understand the nature and specifics of the modification request that was before the juvenile court. As noted earlier, Richard concedes that to the extent that his modification request sought to change the order terminating Father’s rights, the juvenile court was entitled to deny the request without a hearing. He argues at some length on appeal that the juvenile court erred by failing to hold an evidentiary hearing on the Department’s unilateral suspension of his contact with Erin. In our view, that issue is also outside the scope of proper appellate review. The court’s post-appeal ruling in August 2007, in which it adopted an order authorizing regular visitation and telephone contact and clarified that the Department would have no power to reduce that contact without further court order, mooted that issue to the extent that it had even been raised earlier. Richard’s and Erin’s counterarguments that (1) the Department is erroneously claiming the entire appeal is moot, and (2) the assertedly moot issues are likely to recur, are misdirected at issues not presented by this appeal.
Neither the original modification request nor the reconsideration motion squarely posed the issue of whether the Department could lawfully reduce visitation without a court order. Richard’s counsel cited the Department’s action as one ground for his March 2007 reconsideration motion, but he made no explicit argument that the Department exceeded its legal authority or that it should be enjoined from acting unilaterally in the future. Those issues were not raised until Richard’s August 27 modification petition.
In our view, the only cognizable issue raised by the present appeal is whether the juvenile court correctly denied Richard an evidentiary hearing on his request that Erin begin weekend home visits with Richard, Father, and Sarah, leading to a trial home visit. Although Erin’s appellate counsel raises a number of arguments as to why an evidentiary hearing was required, we do not find them persuasive.
First, counsel asserts that there was a significant factual dispute about (1) the nature of the existing visitation between the siblings and (2) whether increasing contact was in Erin’s best interest. In fact, there was no factual dispute about existing visitation. As asserted in Richard’s own moving papers, Erin was back in a group home when the petition was filed, and Richard was being permitted unrestricted telephone calls and increased visitation. In her declaration in opposition to Richard’s request for an evidentiary hearing, the Department’s social worker, Betty Johnson, disclosed that she had stopped allowing the calls and reduced the number of visits after Erin was placed in a new adoptive home. In his reply papers, Richard’s counsel disputed other aspects of the Johnson declaration concerning visits between Erin and her father, but he specifically did not dispute her assertions regarding visitation and telephone contact between Erin and Richard.
There was also no significant factual dispute as to whether it was in Erin’s best interest to begin unsupervised weekend visits in Richard’s home leading to an extended trial home visit. Richard’s modification request did not arise in a factual or procedural vacuum. Father had received 18 months of reunification services in 2003 and 2004. Following a contested hearing in 2005—which included extensive expert testimony regarding Erin’s emotional needs and her relationships with her brother and father, as well as testimony by Father and Sarah about the positive changes Father had made in his life and the stable home he and Sarah could provide for Erin—the juvenile court had determined that it was not in her best interest to be reunited with her brother and father. That determination was upheld on appeal. The juvenile court could properly take this factual and procedural history into account, (see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450–1451), in deciding whether circumstances had changed so significantly that it was necessary to hold another full evidentiary hearing on essentially the same question that had been decided in 2005—whether it was in Erin’s best interest to once again attempt to reunify her with her father. In fact, the only new circumstances cited by Richard were that Erin’s first adoption attempt with the W.’s had failed and his contacts with her had increased as a result. If, as Richard concedes, these circumstances were not sufficient to entitle him to a hearing on a request to modify the termination of parental rights order, they were also not sufficient to require an evidentiary hearing on whether to adopt an order intended to have substantially the same result.
It is clear from reviewing the papers submitted to the juvenile court in Richard’s name that Erin’s juvenile court counsel was correct in characterizing the modification request as a thinly veiled attempt by Father to begin the reunification process all over again and regain custody of Erin. On that ground alone, the juvenile court was justified in declining to grant an evidentiary hearing.
Second, Erin’s counsel asserts that an evidentiary hearing was required because Betty Johnson’s credibility was put in issue by the declarations. Counsel relies for this argument on the discrepancies between the Johnson and Novak declarations regarding the date when Johnson last had contact with Legal Services over arranging a visit between Erin and Father. But those differences were completely inconsequential to the issue before the court and did not put Johnson’s veracity seriously in issue. Johnson may well have been mistaken about the dates. The January 18, 2007 fax did not bear Johnson’s signature or initials and may have been sent out in error by the Department after Johnson had decided to cancel the visits. If Johnson had some motive to dissemble about these matters, knowing that Legal Services would have its own record of her contacts with them, Richard’s counsel failed to bring that motive to the juvenile court’s attention. The juvenile court could reasonably have disregarded the entire imbroglio over the Johnson and Novak declarations as a contrived issue, designed to transmute the R. family’s disagreement with the Department over Erin’s best interests into an ad hominem attack on the social worker assigned to her case.
Richard’s juvenile court counsel sought to personalize the family’s disagreement with the Department at every opportunity. In his brief requesting an evidentiary hearing, counsel described the Department’s permanent plan for Erin as follows: “A cabal of deluded social workers determined Petitioner’s sister must be adopted by her foster parents.”
Finally, Erin’s counsel argues that Erin’s due process right to have her wishes considered was violated by the procedures followed in the juvenile court. Since the papers submitted to the juvenile court did not include any direct evidence of Erin’s wishes, counsel maintains that the court was required to hold an evidentiary hearing to ascertain what her wishes were. We disagree. As the moving party, Richard had the burden of proving that changed circumstances made the proposed new order in Erin’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Barring some evidentiary showing by Richard that Erin had expressed a newfound desire to live with the R.’s, the juvenile court was entitled to rely on: (1) the fact that Erin’s wishes had been properly considered in connection with the existing plan of adoption, which was inconsistent with Richard’s proposed new order; and (2) the opposition to the petition of minor’s counsel, who is charged by statute with representing the child’s interests. Here, there was no competent evidence before the juvenile court that Erin wanted to live with Richard, Sarah, and Father. Although Sarah and Father averred in their declarations that Richard believed Erin wanted to live with them, this is not competent evidence of Erin’s wishes, as her appellate counsel implicitly concedes. We decline to endorse a rule that merely asserting a dependent child’s best interest would be served by a new order is sufficient to require the court to seek evidence from the child of her wishes.
Testimony concerning Erin’s wishes had been presented at the permanency planning hearing.
In any event, Erin did not appeal from the denial of Richard’s modification petition, and it is not clear why Richard should have standing to raise Erin’s due process rights as a ground for reversing the court’s ruling. (See In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) Finally, we note that Erin was consulted in connection with Richard’s August 2007 petition for increased visitation, and Erin’s counsel explained Erin’s wishes to the court in some detail at that time. Any due process issue based on the court’s failure to demand evidence of Erin’s wishes was mooted by the later proceedings.
On appeal, we will not disturb the juvenile court’s ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415–416.) We find no abuse of discretion here in the denial of Richard’s request for modification without an evidentiary hearing.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: MARCHIANO, Acting P.J., SWAGER, J.