Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn Mackel, Juvenile Court Referee, Los Angeles County Super. Ct. No. CK02172
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A.S., mother of L. (10 years old) and K. (nine years old), appeals from the orders of the juvenile court that (1) summarily denied her Welfare and Institutions Code section 388 petition for modification; (2) dismissed the section 387 subsequent petition; and (3) denied her oral request for expanded visitation. The orders are affirmed.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This is the fourth appeal initiated by A.S. Our most recent opinion, filed on August 19, 2008, contains the background facts. The juvenile court declared the children dependents under section 300, subdivision (b), removed the children and ordered A.S. to undergo individual counseling to address case issues, among other things. Reunification services were terminated because A.S. made questionable progress in therapy, her visits ran the gamut from monitored to liberalized and back to supervised. Although the court found that A.S. had complied with her case plan, it concluded that the children would be at risk if returned to A.S.’s care because of her inability to recognize her numerous false allegations about the children’s caretakers, her persistent need for therapy, her instability, distortion, and lack of impulse control, all of which put the children at risk if they were returned to her care.
As before, the children’s father is not a party to this proceeding.
At the section 366.26 hearing, the court appointed the children’s paternal grandmother, H.D., their legal guardian.
In our most recent opinion filed August 19, 2008, we affirmed the juvenile court’s partial denial of A.S.’s section 388 petition requesting return of the children to her custody. We also rejected A.S.’s contention that H.D. was not a suitable guardian.
A.S. has now appealed from the juvenile court’s orders (1) summarily denying her section 388 petition filed in December 2007; (2) dismissing the section 387 supplemental petition filed against H.D.; and (3) denying her oral request for increased visitation. The facts relevant to each contention on appeal will be discussed below.
DISCUSSION
1. The juvenile court did not err in dismissing the section 387 petition because there was no substantial evidence that the previous disposition was ineffective in protecting the children.
a. The facts
The Department received a referral indicating that K. was the victim of sexual abuse by a 14-year-old neighbor child, G.S. During an investigation, H.D. stated that K. denied the abuse. K. told her therapist that G. had inappropriately touched her and the therapist informed H.D. K. gave conflicting statements about whether she told H.D. She related to the social worker how G. tried to touch her vagina under her clothing and, unsuccessful, he touched her buttocks over her clothes. Familiar with karate, K. kicked and punched G. on the back of the head when he tried to reach for her vagina. This occurred 10 times. G. kissed K. about three times. K. also stated that once G. threatened her with a pocket knife and threatened to kill her. Unable to recall the dates when the incidents occurred, K. remembered that the last time was on L.’s birthday. K. described how L. and G.’s 10-year-old sister C. were present in K.’s bedroom during these events, while H.D. was in the other bedroom at the time. L. denied witnessing any sexual or inappropriate behavior.
G. was detained by law enforcement in December 2007. He admitted touching K. and C. several times on the vagina and buttocks and kissing them four times. Sometimes they objected. He then indicated to the police that he had sexual intercourse with K. about 45 times since he was 10 or 11 years old.
Mary Ann Lague, R.N., with Northridge Hospital Medical Center, performed the forensic sex abuse investigation. Lague reported “no physical findings” from K.’s exam. That is, there had been no penetration and K.’s hymen was intact. The anal-genital exam was normal, the findings were consistent with the history provided by K., and the exam could neither confirm nor negate sexual abuse. H.D. appeared to be appropriate. Interviewed by the nurse, K. denied having had intercourse and added that she punched G. when he tried to touch her vagina so he only touched her buttocks.
After a team decisionmaking meeting, the Department detained K. and L. from H.D. because of her lack of supervision, and placed the children in foster care. H.D. agreed to enroll in sexual abuse awareness counseling. A.S. agreed with the detention, requested custody of the children, and preferred that they be placed in foster care than with H.D.
The Department filed a supplemental petition (§ 387) in December 2007 that alleged that K. was raped 40 times over the course of four years by a neighbor child.
At the detention hearing, attorneys for H.D. and for the children asked that the children be returned to H.D. because she had had no knowledge of the event until informed by K.’s therapist and acted appropriately upon learning of it. The Department asked the court to detain the children or to issue protective orders to admonish H.D. to protect the children more actively. After finding that the Department’s detention report and the police report did not support the allegations in the petition, the juvenile court returned the children to H.D., over the Department’s objection. The court did, however, order the Department to ensure that the children participated in counseling and to assist H.D., her companion, and A.S., in enrolling in sexual abuse awareness classes.
In advance of the jurisdiction hearing on the section 387 petition, the Department’s report reflected some small changes in K.’s story. She denied being raped or having sexual intercourse. She stated that G. touched her on her chest and buttocks over her clothing. She could not remember if he had touched her vagina, was unable to say the number of times the touching occurred or to provide the date of the last incident. K. pushed G. away when he tried to kiss her. She had never seen G.’s private parts. She did claim to have told H.D. about the incidents after she told her therapist.
H.D. explained to the Department that she had never witnessed inappropriate behavior by G. or sex abuse, but acknowledged that K. had told her that G. tried to pinch her buttocks over her clothing. Since the revelation, H.D. transports the children to and from school and never lets them out of her sight. K. and H.D. were on a waiting list for sexual abuse treatment. K. continued to attend individual counseling. The children never missed school where they received good grades. H.D. had been cooperative since the allegations came to light and has been assuring that the children’s needs were met.
According to the therapist, K. related that G. touched her but denied intercourse. Otherwise, K. was not specific about details and did not say where the abuse occurred. The therapist stated that K. was doing fine and H.D. was somewhat overprotective, willing to do anything to further K.’s progress, and was very appropriate with the children and their needs.
Both children wanted to remain with H.D. where they felt safe. K. said she missed her grandmother when she visited A.S. The children liked to visit A.S. on weekends, but L. stated he did not want to visit A.S. during the week. They spoke to A.S. on the telephone daily. When A.S.’s visits conflicted with basketball, L. preferred the latter.
After the children’s return to H.D.’s custody, the social worker reported in February 2008, that she saw no safety issues in the home. The social worker observed that the children were doing well and H.D. was taking good care of them. The social worker advised H.D. not to leave the children unsupervised when they engaged in activities with older people. The social worker also told H.D. to ensure that the children engaged in age-appropriate games and activities. The alleged perpetrator had been sent to juvenile hall. The Department recommended the court allow the children to remain in H.D.’s care.
At the hearing to adjudicate the section 387 petition, the Department did not attempt to prove the allegations. Instead, its counsel assured the juvenile court that a supervising social worker “was confident” that the children were not at risk in H.D.’s care. Attorneys for the children, H.D., and father all asked that the petition be dismissed because “there is no risk” to L. and K. After admitting the Department’s jurisdiction report and attachments, the court found “very little connection” between what occurred and what was alleged in the petition. The court found that what did occur was “inappropriate sexual play” with a boy seven years older than K. but that “it appears that everything is in place now to assure that . . . something such as that does not occur in the future.” The court found that K.’s response was appropriate and that she was in counseling and treatment. The court dismissed the petition with prejudice and ordered that the children remain with H.D. with the services that were already in place.
A.S. contends that the juvenile court abused its discretion in dismissing the section 387 petition because the court failed to consider all of the evidence presented.
b. The law and conclusion
“[T]he issue at the adjudication hearing on a supplemental petition is limited to the question whether the previous disposition was effective in the rehabilitation or protection of the child.” (In re Javier G. (2006) 137 Cal.App.4th 453, 460.) The section 387 supplemental petition is used to change the placement of a dependent child from relative care to the more restrictive placement of foster care. (In re H.G. (2006) 146 Cal.App.4th 1, 10.) The supplemental petition “shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.” (§ 387, subd. (b).)
The procedures for the hearing on the section 387 petition are generally the same as for jurisdictional hearings. (In re Miguel E. (2004) 120 Cal.App.4th 521, 542.) The Department carries the burden to show by a preponderance of the evidence that the factual allegations in the section 387 petition are true. (In re H.G., supra, 146 Cal.App.4th at p. 11.) “If the court finds the factual allegations are true, then the court determines whether the previous disposition is no longer effective in protecting the child or whether placement with the relative is not appropriate in view of the criteria in section 361.3. [Citations.]” (In re H.G., supra, at p. 11.)
“We review a determination on a section 387 petition to see if substantial evidence supports that finding. [Citation.]” (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) However, “[c]ustody determinations made by a juvenile court are reviewed under the deferential abuse of discretion standard. [Citation.]” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2007) 158 Cal.App.4th 1562, 1568.)
Here, the record supports the juvenile court’s finding that the petition’s allegations were not true. The petition alleged G. raped K. 40 times. But the evidence simply does not show that. In fact, there is no evidence of penetration or intercourse. The court was entitled to ascribe limited weight to G.’s statements to the police (In re Casey D. (1999) 70 Cal.App.4th 38, 52), particularly in light of the overwhelming evidence, including K.’s repeated denials that sexual intercourse ever occurred and L.’s claim that he did not see sex abuse. And, K. reacted quite appropriately to the events. She kicked and punched G. and reported the conduct to her therapist. Hence, the evidence contained in the reports that were admitted into evidence do not support the petition.
As the juvenile court found that the factual allegations were not true, it was never required to determine whether the guardianship with H.D. was any longer effective in protecting the children or whether placement with H.D. is not appropriate. (In re H.G., supra, 146 Cal.App.4th at p. 11.) There was no error in dismissing the section 387 petition with prejudice.
A.S. contends that the court did not consider crucial evidence. She notes that the police report was not given to the nurse and that the jurisdiction report failed to include follow-up investigations by the police and nurse. But, the court had both the nurse’s and police’s reports and there is no evidence that any follow-up ever occurred.
Anne quotes out of context the juvenile court’s comments after dismissing it that the petition was “definitely not in the court file” to suggest that the court acted so rashly as to rule on a petition it had never seen. But, reading the full statement, it shows that the court was fully aware of the petition’s contents: “Counsel I’m going to provide you the copy . . . of the petition to the court. It’s definitely not in the court file. There’s been a lot of appeals on this matter. The case file does not reveal it but I don’t see a copy of this petition which we know was here before.” (Italics added.)
Anne’s contention that the hearing should have been continued so that a full investigation could be completed is not cognizable on appeal. She did not request a continuance in the juvenile court. (Cf. In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)
A.S. next argues that the juvenile court’s characterization of the events as “sexual play” is “ludicrous” because G. was so much bigger than K. and he threatened her with a knife. The court did not take the allegations lightly; it declared its wish that the events had not occurred. Its description of the events was based on its weighing of the evidence and inferences drawn therefrom, which task is assigned uniquely to the court. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) A.S.’s alternate characterization does not overcome the court’s ultimate finding that the allegations in the petition were not true.
A.S. sums up her challenge by arguing that the juvenile court’s actions “leads one to believe that the court was biased and unwilling to remove the children from [H.D.’s] home under any circumstances.” She points to the court’s (1) “giv[ing] a heads up” to the Department that the detention report did not support the petition’s allegations and (2) dismissal of the section 387 petition with prejudice, notwithstanding G.’s confession to the police. As noted, the court was entitled to disbelieve G.’s statements to the police to the effect that he had sexual intercourse with K. 40 times since he was nine years old. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) The court’s “heads up” comment can easily be understood, not as nefarious bias, but as a warning to the Department that it would have to present more compelling evidence in its jurisdiction report to justify sustaining the petition’s allegations.
Otherwise, Anne’s challenge to the juvenile court’s denial of her peremptory challenges (Code Civ. Proc., § 170.6) dated February 4 and 20, 2008, is unavailing. Apart from the fact Anne forfeited her claim of error by omitting any argument in her brief that the ruling was improper (In re S.C. (2006) 138 Cal.App.4th 396, 410), the record reveals that the court properly denied the challenges as they were untimely. Section 170.6 requires, when it is known 10 days in advance that a challenged judge is scheduled to hear a matter, a peremptory challenge must be made “at least 5 days before that date” and otherwise not later than the commencement of a hearing. (§ 170.6, subd. (a)(2).) Both of Anne’s challenges were filed after the hearings challenged.
3. The juvenile court did not err in summarily denying A.S.’s section 388 petition.
a. The facts
When the Department filed its section 387 petition, A.S. filed a section 388 petition asking the juvenile court to release the children to her custody. As changed circumstances, A.S. asserted that she was in compliance with all court orders, and that K. was traumatized by the molestation. The change of order would be in K.’s best interest, A.S. asserted, because A.S. could ensure her regular school attendance, participation in age-appropriate extracurricular activities, and provide emotional support and therapy. She also alleged that L. would benefit from remaining with K. and being reunited with A.S. A.S. attached a letter from her therapist, an intern, who wrote that A.S. had consistently attended weekly individual therapy for two months.
The juvenile court summarily denied A.S.’s section 388 petition because the petition did not show that it would be in the children’s best interest to change the order. A.S.’s application for rehearing was denied. A.S. contends on appeal that summary denial of her petition was an abuse of discretion.
Also, in January 2008, Anne filed a complaint against the children’s attorney, Dwana Willis. The complaint alleged that K. reported that Ms. Willis stated that Anne needed “a brain operation,” and alleged that Ms. Willis emotionally abused K. Anne asked the court to remove Ms. Willis from the case and appoint another attorney “who is ethical and not abusive” to the children.
b. The law and conclusion
“Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor’s best interests. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) The parent seeking modification need only “make a prima facie showing to trigger the right to proceed by way of a full hearing [citation]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310) and the petition is to be liberally construed in favor of its sufficiency. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
In determining whether the petition makes the necessary showing, the court may consider the factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) “ ‘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. [Citations.]’ ” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)
Certainly, K.’s molestation constitutes a changed circumstance. Nonetheless, A.S. has not made a prima facie showing with respect to the second prong, namely, that the children’s best interests might be served by ordering the children’s return to A.S.’s custody.
As noted, A.S. asserted that the reasons the change of order would be in the children’s best interest was because “K[.] is traumatized by her victimization and it would be in her best interest to be with her mother who can provide her with emotional support, individual therapy, group therapy and can see to her regular attendance at school and in age appropriate extracurricular activities. L[.] would benefit from staying with his sibling as well as being reunited with his biological mother.”
A.S. simply has not met her burden. A.S. is still not in therapy that conforms to the court’s orders because her current counselor is an intern contrary to specific orders of the court that the therapist not be an intern. More important, H.D. is already meeting all of the needs A.S. claims she can provide. H.D. (1) has already placed K. in therapy; (2) has already enrolled K. in sex abuse counseling; (3) provides K. and L. with emotional support as evidenced by the children’s repeated statements that they want to remain with H.D. where they feel safe; (4) drives the children to and from school where they have perfect attendance records; and (5) enrolled them in extra-curricular activities such as basketball. And, the two children are placed together. In short, A.S. made no showing that the strength of the children’s bond with her was stronger than the bond they have with H.D. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Where their needs are already being met by H.D. and where the children are very bonded with and feel safe with H.D., the juvenile court did not abuse its discretion in summarily denying A.S.’s section 388 petition on the ground that A.S. did not make a prima facie case that her requested change would be in the children’s best interest.
3. The juvenile court exercised its discretion in denying A.S.’s request for extended visitation.
After the juvenile court dismissed the Department’s section 387 petition, A.S. asked that the court allow her to have one additional day of visitation, on Sundays, during the weeks when she did not have a weekend visit with the children, in addition to her two overnight weekend visits per month. Counsel for the children and H.D. asked the court to leave the visitation unchanged. The court denied A.S.’s request stating that the change would defeat the court’s intent behind the current visitation schedule, namely, to assure that the children had weekends available to play with their friends and be in their community. A.S. now challenges that ruling arguing that it will infringe on her ability to demonstrate the exception to adoption in the event that the Department decides to proceed with adoption as a permanent plan. The contention is unavailing.
Even assuming the juvenile court may hear an oral request for a change in visitation (cf. In re Natasha A. (1996) 42 Cal.App.4th 28, 36-37), it did not abuse its discretion by denying the request. The court had the Department’s jurisdictional report indicating that the children were happy with the existing arrangement and L. had even asked that one visit with A.S. be postponed because of a basketball game. We are mindful that this case is characterized by a cycle of liberalized and supervised visits because of A.S.’s erratic behavior and failure to consistently attend therapy with a non-intern. The court reasonably concluded that increasing visitation would interfere with the children’s ability to integrate in their community and spend time with their friends. The court properly exercised its discretion in denying A.S.’s oral request made without advance notice to counsel for the Department, the children, or H.D.
DISPOSITION
The orders appealed from are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.