Opinion
B329524 B330125
11-21-2023
In re J.C. et al., Persons Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, In re J.H., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Super. Ct. Nos. 17CCJP02101E-F, 17CCJP02101D Stephen C. Marpet, Commissioner. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, J.
Mother A.H. appeals the juvenile court's orders denying her petitions under Welfare and Institutions Code section 388 without a hearing and ordering guardianship for her three minor daughters, who range in age from 12 to 16 years old. Mother makes no argument in her briefing as to why the guardianship orders were error so we deem the issue forfeited. Mother argues only that the juvenile court abused its discretion in denying her section 388 petitions without a hearing. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a total of five daughters, two of whom are now adults. Two of her minor daughters share a father, father C. The father of the third minor daughter is father S. No father is a party to this appeal.
The family has an extensive history with the Los Angeles County Department of Children and Family Services (Department) and the juvenile court, with numerous referrals dating back to 2005.
In 2011, the juvenile court exercised jurisdiction over mother's three eldest children due to mother's physical abuse of one of them, domestic violence with father C., and mother's mental and emotional problems.
In 2015, the juvenile court exercised jurisdiction over the three girls who are the subject of the current case based on mother's inappropriate disciplining of one of them as well as mother's unresolved history of substance abuse. In 2018, the juvenile court exercised jurisdiction over the same three girls based on mother's domestic violence with father C.
In each of the three prior cases, the juvenile court terminated jurisdiction after mother completed services.
The present case began just months after the juvenile court terminated jurisdiction in the preceding case. This case resulted from mother's physical abuse of the children and her history of violent altercations with family members in the children's presence. The children were detained in July 2020, and the juvenile court ordered family reunification services. After a series of continuances, the juvenile court sustained petitions as to each of the children under section 300, subdivisions (a), (b), and (j) in January 2021.
Following a dispositional hearing in April 2021, the juvenile court ordered the children to remain removed and ordered further reunification services for mother. These included parenting classes, individual counseling, a psychological assessment, and a psychiatric evaluation. The court also ordered mother to take all prescribed psychotropic medications. All children were in foster care at the time of the dispositional hearing. Within a few months, they obtained new placements with various family members.
In November 2021, the juvenile court held a 12-month review hearing. Mother testified that, at the time, she had completed a parenting class, had been enrolled in individual counseling on and off since the case began (including four months continuously with her then-current therapist), was seeing a psychiatrist, and was taking her prescribed medications. Mother further testified that she took responsibility for her shortcomings as a parent and had learned to be more attentive to her daughters and treat them with love. But the court found mother was not in compliance with her case plan, terminated services, and set a permanent plan hearing for March 2022.
The Department recommended guardianship for each of the three girls. Paternal grandmother of the children of father C. expressed a willingness to serve as their guardian, and the Department was exploring permanency for the child of father S. with a maternal great-aunt.
The permanency planning review hearing was continued in March 2022 to July 2022 due to uncertainty about placement for the child of father S. Shortly before the July 2022 hearing, the child of father S. was placed with the maternal great-aunt, who expressed interest in becoming her guardian, necessitating a further continuance. Moreover, father C. was released from state custody and successfully petitioned the juvenile court for reunification services.
Father C.'s efforts to reunify failed, and the juvenile court terminated services for him in November 2022. It set a section 366.26 guardianship hearing for January 2023. At the January 2023 hearing, the court found the child of father S. suitably placed with maternal great-aunt and ordered guardianship as her permanent plan. It continued the selection and implementation hearing for all three children to May 2023.
The day before the scheduled selection and implementation hearing, mother filed section 388 petitions for each of the three children requesting the court to change the November 2021 order terminating mother's reunification services and return the children to her custody with family maintenance services. Mother asserted she continued to participate in therapy and have a positive relationship with her children. She disputed recent reports about negative interactions with them and claimed to support them emotionally and financially. She contended the requested modification would serve the children's interests because each had previously told her they wanted to return to her care. To the petitions, she attached her own declaration elaborating on these themes and "Cash App" account statements showing various transactions without explanation. The account statements are all in the name of two different daughters. Among the transactions listed were some with other daughters but none with mother.
At the scheduled May 2023 selection and implementation hearing, the court summarily denied mother's section 388 petitions without a hearing. It explained mother's proposed modification was not in the children's bests interests and she had failed to show the predicate change of circumstances. The court appointed the paternal grandmother of the children of father C. as their guardian. Because of incomplete paperwork, the selection and implementation hearing for the child of father S. was delayed to June 2023, whereupon the court appointed maternal great-aunt as her guardian.
Mother appealed the juvenile court's denial of her section 388 petitions and its guardianship orders for the three children. Because of the delay in the order for the child of father S., mother's appeals were filed at different times and assigned different case numbers in this court. We ordered the appeals consolidated and now resolve them together.
DISCUSSION
1. Section 388 and Standard of Review
Section 388, subdivision (a)(1), authorizes the parent of a dependent child to, "upon grounds of change of circumstance or new evidence," petition the juvenile court "for a hearing to change, modify, or set aside any order of court previously made." (Ibid.) "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." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) "To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "[A] primary consideration in determining the child's best interest is the goal of assuring stability and continuity." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"A juvenile court may summarily deny a section 388 petition without an evidentiary hearing, but 'a petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order.'" (In re R.A. (2021) 61 Cal.App.5th 826, 836; see also § 388, subd. (d); Cal. Rules of Court, rule 5.570(a) ["A petition for modification must be liberally construed in favor of its sufficiency"].)
"In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Conclusory allegations in a petition or its supporting declarations are insufficient to make the required prima face showing. (Anthony W., supra, 87 Cal.App.4th at p. 250; In re Jeremy S. (2001) 89 Cal.App.4th 514, 521 [the father's selfserving declaration he was "drug free" insufficient to make prima facie showing], disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414; In re Alayah J. (2017) 9 Cal.App.5th 469, 478 ["To make a prima facie showing under section 388, the allegations of the petition . . . must not be conclusory."].) Moreover," '[s]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required." (Anthony W., at p. 250; see also Alayah J., at p. 478.) This is because, "[i]f 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. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
We review denial of a section 388 petition without a hearing for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.) Under that standard, we will not disturb the decision of the juvenile court unless it was arbitrary, capricious, or patently absurd. (Ibid.)
2. Analysis
We find no abuse of discretion in the juvenile court's determination that mother failed to make a prima facie showing of changed circumstances. It is not arbitrary, capricious, or patently absurd to conclude that the circumstances mother describes in her petitions are substantially the same as they were in November 2021 when the juvenile court entered the order she seeks to modify. At both times, mother was in therapy, seeing a psychiatrist, and medication compliant.
What is missing from the petitions is any meaningful claim of progress resulting from her services and treatment. Mother's belief that "I am a different person because I used to always want to fight[,] now I have different coping skills" is a conclusory assertion, and the juvenile court was entitled to deem it inadequate in light of the factual and procedural history of the case. Mother received services in each of the four dependency cases involving the family. As the petitions themselves reflect, she "ha[d] been in therapy for the past 10 years." Her numerous returns to the juvenile court while her therapy was ongoing show that adequate progress from therapy has eluded mother. The juvenile court acted within its discretion when it declined to delay permanency for the children based on the circumstances mother described in her petitions.
We need not consider mother's arguments about a mischecked box in the juvenile court's written form disposition of her section 388 petitions. Its accompanying finding that mother failed to make a prima facie showing of changed circumstances precludes any relief under section 388, rendering any error in the form of order harmless.
DISPOSITION
The orders are affirmed.
WE CONCUR: STRATTON, P. J. VIRAMONTES, J.