Opinion
B307496
07-20-2021
In re M.M., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Y.M., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles No. 18CCJP00928A-B, Debra R. Archuleta, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Y.M. (mother) appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 petition requesting reinstatement of her visitation rights with her children, M.M. and D.M. According to mother, the court acted arbitrarily by denying her petition without an evidentiary hearing. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Detention, Jurisdiction, and Visitation
In February 2018, the family came to the attention of the Los Angeles County Department of Children and Family Services (Department) when a Los Angeles Police Department sergeant reported that mother and O.M. (father) had been arrested and were in custody in connection with the murder of a juvenile 18th Street gang member. According to the sergeant, the Los Angeles Police Department Gangs Division and the FBI were conducting a joint investigation into an October 2017 murder committed by MS-13 gang members. The suspects in the murder, including mother and father, ranged from 15 to 18 years of age. The Gangs Division and FBI special agents had determined that mother and father were current MS-13 gang members who had participated in “the kidnapping, tortur[e], disfigure[ment], murder and disappearance of the [victim].”
On March 13, 2018, the Department reported that it had placed M.M. in paternal grandmother's home, but after consultation with law enforcement it had determined that M.M. should be removed from that home to ensure his safety. The Department also reported that during a recent visit with mother, who was in custody at Sylmar Juvenile Hall, maternal grandmother was approached by an unknown juvenile who asked her, “‘Are you [mother's] mother?'” Maternal grandmother was shocked and was worried about her safety.
On March 16, 2018, the Department filed an amended petition that was sustained as follows:
“b-1...
“On 02/08/2018, the child [M.M.]'s mother... and father... were arrested and incarcerated for [murder in violation of Penal Code section 187, subdivision (a)]. [M]other... and father... are affiliated/associated with the notorious MS-13 (Mara Salvatrucha) gang. The MS-13 gang is known to be involved in the following criminal activities[:] extortion, robbery, murder, attempted murder, vandalism, assault with a deadly weapon, battery, narcotics possession, narcotics sales, possession of a firearm, grand theft auto[, ] and the killings of rival gang members. In addition, [] mother and father had images of MS-13 on their Facebook pages including images of murdered bodies and music associated with the gang. Further, the parents['] association/affiliation with MS-13 and the parent[s'] incarceration endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger.” (Emphasis omitted.)
At the April 9, 2018, hearing, the juvenile court removed M.M. from the parents' custody and granted the parents reunification services and monitored visitation at their place of incarceration.
In August 2018, mother gave birth to the couple's daughter, D.M. The parents, who were both still in custody, agreed to allow D.M. to be taken into protective custody. The Department placed D.M. with the paternal grandmother.
On August 27, 2018, the Department filed a section 300 petition on behalf of D.M., which alleged, as count j-1, that D.M.'s sibling M.M. was a current dependent of the juvenile court due to the parent's incarceration and association with MS-13, and that the parents' association and affiliation with MS-13 and incarceration endangered D.M.'s safety and placed the child at risk of serious physical harm, damage, and danger.
In September 2018, the Department reported that the parents' monitored visitation had taken place in custody as ordered by the juvenile court the prior April. Later that month, the Department advised the court that D.M. remained placed with the paternal grandparents. At the October 5, 2018, jurisdiction/disposition hearing for D.M., the court sustained the section 300 petition as to the parents based on the allegations in count j-1. The court declared D.M. a dependent, removed her from her parents' custody, and placed her under the supervision of the Department. The court granted parents continued reunification services and ordered the Department to assess whether mother's visitation rights should be increased.
In March 2019 status review reports, the Department informed the juvenile court that both children remained placed with the paternal grandparents and that the parents remained incarcerated at the Sylmar Juvenile Hall. The parents continued to have monitored visitation with the children two times per month in their place of incarceration.
In September 2019, the Department reported that mother had been released from custody in June 2019 and had been participating in monitored visits with the children at the local park, a restaurant, or a shopping center. The Department also reported that on August 8, 2019, both children had been removed from the paternal grandparents' home due to safety concerns and placed in a foster home. The new caregivers had expressed a willingness to adopt the children and were being assessed. According to the Department, it was “unable to consider the [paternal] grandparents as potential caregivers due to extreme safety concerns noted by the FBI, [the District Attorney], and [the] Probation Department.”
Mother apparently had been placed on probation in the home of her mother after the juvenile court sustained a petition filed against her for violation of Penal Code section 187, subdivision (a) and set a maximum term of confinement of 25 years to life. Her probation terms included prohibitions against contact with father or other MS-13 gang members.
On August 21, 2019, mother was arrested and once again incarcerated. A social worker reported that mother's probation officer had detained her and recommended incarceration at juvenile hall because mother was found to be in possession of a secondary phone that she used to communicate with father in violation of the terms of her probation. The probation officer also suspected that the paternal grandmother was facilitating contact between mother and father. As a result of mother's conduct, the FBI was no longer willing to offer her witness protection services.
On August 29, 2019, father's probation officer informed the Department that the children's visits with the parents in custody were taking place in “an open view and in plain sight” of other juvenile offenders who passed by or entered the location. The Department was concerned about the safety and well-being of the children and requested that visits with mother and father be suspended. Accordingly, on September 4, 2019, the Department filed an ex parte application with the juvenile court seeking to suspend the parents' visits with the children in order to ensure the children's safety.
On October 28, 2019, the Department filed section 388 petitions seeking a change in the juvenile court's visitation orders based on an attached letter from father's probation officer reporting that a juvenile court had prohibited father from making telephone calls because he had violated a court order by contacting mother. According to the probation officer, the children could be observed by rivals during their visits in juvenile hall, which may endanger the children as such rivals could retaliate against father through his children. On November 14, 2019, the juvenile court entered an interim no-visitation order for the parents while in custody pending an evidentiary hearing on the Department's section 388 petition.
On December 5, 2019, the Department reported that the children continued to be placed with the foster parents and that they were doing well in their placement. The Department also advised the juvenile court of its continued concern about the safety of the children if returned to the paternal grandparents. According to the Department, multiple agencies, including the FBI, the District Attorney, and the Los Angeles Police Department were concerned about the risk of retaliation against the children by gang members based on father's prohibited outside contact while detained.
At the December 5, 2019, hearing on the Department's section 388 petition, the juvenile court granted the petition and ordered no visitation for the parents while they were in custody.
At the March 3, 2020, review hearing, the juvenile court found that the parents had not made substantial progress toward alleviating or mitigating the causes that had necessitated the children's placement. The court therefore terminated the parents' reunification services and set the matter for a permanent planning hearing in July 2020.
B. Mother's Section 388 Petition
In May 2020, due to court closures during the COVID-19 state of emergency, the permanent planning hearing was continued to January 4, 2021. In a June 23, 2020, section 366.26 report, the Department advised the juvenile court that the parents had maintained contact with the children until visitation was terminated on December 5, 2019, although their contact was limited to one-hour visits at the parents' place of incarceration and had been interrupted by restrictions imposed by the facility due to safety concerns about “the children being seen at the [facility].” The Department also reported that the children were “thriving” in the care of the foster parents and that those caregivers were “willing and able to provide [the children] with permanency through adoption.” The Department therefore recommended that parental rights be terminated.
On August 10, 2020, mother filed a section 388 petition requesting that the juvenile court change its no visitation order and allow telephonic and in-person visits with the children. The first page of the petition indicated that it was being filed on behalf of M.M. only, but paragraphs 7 and 8 both mentioned “the children” when describing the grounds for and nature of the relief sought. According to the petition, mother's current place of confinement was “now able to provide confidential visits to protect the children and the caregivers” and such visits would be in the best interests of the children because at their young age, “bonding time [with mother was] critical.” In support of the petition, mother submitted a letter from the superintendent of her place of incarceration which stated: “I am writing this memorandum to address the concern of confidential and safe visitation for [mother] and her children. I assure you [that mother's current facility] can facilitate this request for a confidential and safe visit for any of our youth. This can be set up through [mother's parole agent].”
That same day, the children's attorney filed a request to change their placement to the paternal grandparents' home.
On August 18, 2020, in a proceeding without appearances by the parties or a court reporter, the juvenile court denied mother's section 388 petition. According to the minute order, mother's petition was “denied as the request [did] not state new evidence or [a] change of circumstances.
That same day, the court denied the request of the children's attorney to be placed with the paternal grandparents.
On August 26, 2020, mother filed a notice of appeal from the juvenile court's August 18, 2020, order denying her “[s]ection 388 motion to change court orders.”
III. DISCUSSION
Mother contends that the juvenile court acted arbitrarily when it denied her section 388 petition without first holding an evidentiary hearing.
The Department contends that because mother's section 388 petition and the order denying it identified only M.M., we have no jurisdiction to consider the appeal filed on behalf of D.M. Although the first page of the petition mentions only M.M., the allegations and request for relief reference mother's “children.” Therefore, fairly read and construed, the petition sought relief on behalf of both of mother's children, and we will therefore consider the merits of the appeal on behalf of D.M. as well.
A. Legal Principles and Standard of Review
“Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.] To obtain the requested modification, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. [Citations.] [¶]... [¶] To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.] A section 388 petition must be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) But “[i]f 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.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “We normally review the grant or denial of a section 388 petition for an abuse of discretion” (In re Alayah J., supra, 9 Cal.App.5th at p. 478), including the court's summary denial of a section 388 petition without a hearing (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079).
B. Analysis
We will assume, without deciding, that mother sufficiently alleged a change in circumstance. We nonetheless find that mother did not meet her additional burden of showing that the proposed change in order would be in the children's best interests. Other than the conclusory assertion that contact between a mother and her young children is “critical” to bonding, the petition lacked any other specific allegations suggesting that, at this stage of the proceedings, renewal of limited contact between mother and her children at her place of incarceration would be in their best interests. At the time of her section 388 petition, mother had not visited with her children for over eight months, and even her limited contact with them over the prior two years (two one-hour visits per month) had been interrupted due to safety concerns. By contrast, since at least the entry of the no-visitation order, the children had bonded with their caregivers and were thriving in their foster home, developments that resulted in the termination of reunification services, a Department recommendation to terminate parental rights, and assessment of adoption as the permanent plan. Given those current circumstances, it was incumbent upon mother to state some facts in her petition to show that the children would derive a meaningful benefit from the restricted visitation she was requesting. On this record, and mindful that we do not substitute our own judgment for that of the juvenile court, we conclude the court did not abuse its discretion when it denied mother's petition.
IV. DISPOSITION
The order denying mother's section 388 petition is affirmed.
We concur: RUBIN, P. J., BAKER, J.