Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP014773, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kazoua Cha, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOORE, J.
The mother filed a motion under Welfare and Institutions Code section 388 approximately 15 months after the initiation of this dependency case. The mother, who was 17 years old at the time, argued that new case law holding that the appointment of a guardian ad litem was required for minor parents required the court to return the case to the detention stage. The dependency court found this did not meet the requirements to grant a full hearing under the statute. We agree and find no error.
I
FACTS
In January 2007, Stephanie V. (the mother) was 16 years old. She was residing in a group home under the jurisdiction of the Orange County Probation Department. She had a juvenile record that included assault and battery charges and probation violations. She also had a history of running away from home and taking drugs.
The father is not a party to this appeal, and as such, will only be discussed as relevant to the mother’s appeal.
The child, Landon, was three months old at the time, and the mother was breastfeeding him. A drug test at the group home showed that the mother tested positive for opiates, marijuana, and benzodiazepine. The mother ran away with Landon to a home where several people were using marijuana. As a result, she was arrested, and Landon was taken into protective custody.
At the initial detention hearing on February 1, the mother was not present, due to a hearing she had in delinquency court. She was appointed counsel, and Landon was detained. At the trailed detention hearing, the mother was present and in custody. The court authorized visitation and reunification services, including drug and alcohol testing. Landon was placed in a foster home.
In March 2007, the mother pleaded no contest and stipulated to the allegations in an amended petition under Welfare and Institutions Code section 300, subdivisions (b) and (g). The petition alleged that the mother had tested positive for illegal substances, putting Landon at risk because she was breastfeeding. It also alleged that she had a history of substance abuse, and she had placed Landon in danger by leaving the group home and taking him to a location where drugs were used. The petition further alleged that the mother had a history of domestic violence with the father and an anger management problem.
Unless otherwise noted, subsequent statutory references are to the Welfare and Institutions Code.
The court vested custody with the Orange County Social Services Agency (SSA) and ordered continued services for the mother. She was given a case plan that included counseling, parenting education, and drug testing. Monitored visitation was also authorized.
The six-month review hearing was continued several times due to paternity issues, and ultimately held in February 2008. From the first scheduled hearing in September, SSA recommended terminating services and setting a hearing under section 366.26. Beginning in April 2007, the mother told senior social worker Vanetta Warrior that she wished to relinquish Landon for adoption. She apparently found a couple from her church who were interested in adopting him. Landon’s caretaker had also established a bond with him and was interested in adoption, and according to SSA, the established caretaker had priority.
Although the mother had initially participated in services, she stopped in June 2007 after deciding to relinquish Landon for adoption. She appeared very ambivalent about regaining custody of the child. She did visit consistently and appropriately, but did not show much of a bond with Landon. The mother lived with her parents, attended school, and worked part time.
At a December 6 hearing, the mother was present and her counsel informed the court that she had changed her mind about relinquishing Landon and wanted to pursue reunification. The matter was then set for a contested hearing in late January.
The mother told Warrior that she wanted to reunify. She began drug testing in January 2008, and the first test was negative. She continued to visit, and the monitor reported that the mother was attentive to Landon for a time, but would lose focus.
The contested hearing was held in February, and pursuant to stipulation, was continued to March 19 for a 12-month review. The court approved a new case plan for the mother that included staying sober, counseling, drug testing, and a 12-step program. She continued visiting with Landon twice a week.
SSA’s 12-month review report once again recommended that the court terminate services and set a section 366.26 hearing. Although visits were consistent and generally went well, Warrior reported that the mother was not preparing for life with a child in a mature manner. She had been truant at school, dropped from classes, and had lost two jobs. She had poor attendance at her current job. Warrior felt that the mother did not realize what raising a child entailed, and that she wanted him for the wrong reasons. “The mother,” Warrior wrote, “has this fantasy that everything would be in place if the child were returned to her. However, the mother’s actions indicate that she wants to live her life, do grownup things [and] have fun.” Her drug tests were negative, but her therapist reported that it was difficult to treat the mother’s substance abuse, because the mother did not see herself as having a problem.
The March 19 hearing was continued a number of times. In the interim, SSA reported that the mother had begun therapy, but was terminated for missing sessions and had to be reinstated. She did continue to test negative for drugs consistently and reported attending Narcotics Anonymous meetings. The mother continued visiting Landon without incident.
On June 4, the mother was on call for a hearing. On that date, she filed a section 388 petition requesting that all prior court orders be vacated and the case returned to the beginning of detention. She relied on In re M.F. (2008) 161 Cal.App.4th 673 (M.F.), which held that appointing a guardian ad litem was required when the parent is a juvenile herself. She argued that this case presented the required changed circumstances under section 388, and that it was in Landon’s best interests because she needed a guardian ad litem to avoid a miscarriage of justice. Counsel for SSA submitted a brief arguing that M.F. did not apply.
At a continued hearing, counsel argued the motion. The court denied a hearing, stating that no prima facie case had been made and no best interest argument had been offered. Among other things, the court felt that M.F. was wrongly decided, and that a guardian ad litem should only be appointed if appropriate under the Welfare and Institutions Code. Further, the court felt that the facts were different and that any error was harmless. The mother subsequently filed a notice of appeal from the denial of her section 388 motion.
Eventually, after subsequent hearings, the court terminated services and set a hearing under section 366.26.
II
DISCUSSION
The mother appeals the court’s denial of her section 388 motion. “The juvenile court’s determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“exceeded the bounds of reason. 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.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
In pertinent part, section 388, subdivision (a) provides: “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 circumstances or new evidence, petition the court... for a hearing to change, modify, or set aside any order [the] court previously made....” If the petitioning party presents a prima facie case that the statute applies, a hearing should be granted.
“The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent 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.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “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 Zachary G. (1999) 77 Cal.App.4th 799, 806.)
This case fails on both prongs. Although a change in law would often constitute sufficient evidence of a change in circumstances, the trial court correctly reasoned that the proper standard for the failure to appoint a guardian ad litem under M.F. was harmless error. (In re James F. (2008) 42 Cal.4th 901, 918-919.) In M.F., the court found that because the mother’s “attorney did not contest any of the findings or orders in this matter, the failure to appoint a guardian ad litem for [the mother] cannot be deemed harmless under any standard.” (M.F., supra, 161 Cal.App.4th at p. 681.)
The facts in M.F. are thus far from the facts here. The record clearly reflects a history of vigorous advocacy to protect the mother’s interests. Although early hearings were uncontested, reflecting the mother’s early desire to proceed with adoption, once the mother changed her mind, her attorney engaged in zealous advocacy to protect her interests. And the court noted, the mother herself was quite capable of making her own arguments: “[I]n this particular case here, we have someone who did contest . . . . She did contest. And not only contested, prevailed, where I think there’s an argument that she shouldn’t have prevailed.” Ironically, the filing of the section 388 petition itself indicates the high level of both parental involvement and advocacy that occurred in this case. Thus, the trial court properly found that any failure to appoint a guardian ad litem was harmless error.
We note that M.F. has since been superseded by statute. Effective January 1, 2009, section 326.7 provides that “[a]ppointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.” (Stats. 2008, ch. 181 § 1.)
Even if the new case law had been sufficient to satisfy the first prong of section 388, we agree with the trial court that no evidentiary showing at all was made with regard to the second prong. The mother’s only argument was that the child’s best interests would be served because “his mother needed to have a Guardian Ad Litem when the case initially came in order to avoid a miscarriage of justice.” At best, this argument is circular — the child’s best interests would be served by protecting the mother’s interests. Such an argument, however, is not what section 388 contemplates, and the mother offers no evidentiary showing at all as to how the child’s best interests would be served by a further one to two year delay in dependency proceedings.
III
DISPOSITION
The court’s order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.