Opinion
B323164
04-19-2024
In re D.V. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
Lori Siegel, 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NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles No. 19CCJP06967A-D, Debra R. Archuleta, Judge. Affirmed.
Lori Siegel, 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.
KIM, J.
I. INTRODUCTION
A.M., mother of the children, appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 petition to change the court's prior order terminating her reunification services. She also contends that the Department of Children and Family Services (the Department) and the juvenile court failed to comply with their duties of inquiry under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (§ 224 et seq.). We affirm the denial of the section 388 petition and dismiss as moot the challenge under ICWA.
The children involved in this proceeding are D.V. (then 11- years old), M.V. (then eight-years old), Ma.V. (then four-years old), and A.V. (then five-days old). Father, J.V., is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
On October 28, 2019, the Department filed a section 300 petition alleging that A.V. tested positive at birth for amphetamine and methamphetamine as a result of mother's substance abuse, placing the child at risk of serious physical harm. The Department further alleged that mother had a history of drug and alcohol abuse which rendered her incapable of providing regular care and supervision of the children and placed them at risk of harm.
At the detention hearing held that same day, the juvenile court found the Department had made a prima facie showing that the children were persons described in section 300, reasonable efforts had been made to prevent their removal, and there was a substantial danger to their health. The court therefore detained the children and placed them under the care of the Department. The court also ordered reunification services for the family and granted mother monitored visitation.
B. Jurisdiction and Disposition
On December 13, 2019, the juvenile court held a jurisdiction and disposition hearing at which it sustained the petition as alleged against mother, removed the children from her, ordered the Department to continue to provide family reunification services, and granted mother monitored visitation three times per week for three hours per visit.
C. 18-Month Review
On July 28, 2021, the juvenile court held an 18-month review hearing at which mother testified. Following argument, the court made certain findings, including that returning the children to either parent would create a substantial risk of harm to their physical health and emotional well-being; it was detrimental to the children that mother could not commit to a regular visitation schedule; the children did not feel safe with mother and did not want to visit with her; mother had not been in contact with the Department since early July 2021 and had not drug tested regularly; the Department had not been able to assess mother's sobriety; and mother's compliance with the court-ordered case plan had been "borderline poor" in light of the recent updated reports.
The juvenile court concluded that: "[T]his case was filed on October 28, 2019. There has been more than an ample opportunity, pandemic notwithstanding, for this family to get itself together to take advantage of the services. And, they have chosen not to do that. [ ] So for these reasons, I am terminating family reunification services for both mother and father." The court then set the matter for a section 366.26 permanency planning hearing.
D. Section 388 Petition
On July 27, 2022, following several continuances of the section 366.26 hearing due to, among other things, notice issues, mother filed a section 388 petition seeking a change to the juvenile court's July 28, 2021, order terminating reunification services. As grounds for the request, mother alleged that she "completed inpatient drug/alcohol treatment at Angel Step Too Treatment on [February 4, 2020]. [She] completed outpatient drug/alcohol treatment at Divine Healthcare Services, Inc. on [August 7, 2020,] and completed Recovery Support Services on [October 5, 2021]. [She] completed parenting class, attended individual counseling, anger management and domestic violence classes, and a 12-Step program. [She] ha[d] a substantial history of negative drug tests." Mother requested that the court return her children to her, reinstate her family reunification services, and grant her unmonitored visits and overnight and weekend visits.
Mother filed an identical petition for each of the four children.
Mother supported her petition with her declaration (and supporting exhibits) in which she stated the following: (1) on November 6, 2019, she enrolled in "an inpatient substance use disorder residential treatment program" that included participation in group sessions (on parenting, alcohol and drug education, relapse prevention, trauma, anger management, domestic violence, and cognitive behavioral therapy), individual therapy, weekly individual counseling, and weekly 12-step meetings, completing inpatient treatment on February 4, 2020; (2) on February 7, 2020, she transferred to an outpatient program, attended 20 parenting classes, and successfully completed outpatient care on August 7, 2020; (3) on August 10, 2020, she then enrolled in Recovery Support Services for voluntary substance abuse treatment support; (4) on June 30, 2021, she stopped submitting to drug testing after she "was informed [that she] would not be getting [her] children back"; (5) on October 5, 2021, "[she] discharged from the Recovery Support Services program"; and (6) she had been visiting her children weekly for two hours per visit, including watching movies, visits to the park, and picnics, during which she talked with them about school, friends, and their "general well[-]being and health."
On August 2, 2022, the juvenile court issued an order denying the section 388 petition without a hearing because, among other things, it did not state new evidence or a change in circumstances. According to the court, "[t]he [section] 388 petition ha[d] failed to demonstrate a prima facie showing [and] therefore no hearing [was] set."
III. DISCUSSION
A. Section 388 Petition
Mother contends she made a prima facie showing of the requisite changed circumstances to warrant a hearing on her section 388 petition. According to mother, her "progress and changed circumstances [are] evident from a careful read[ing] of the record."
1. 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 circumstance 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).
2. Analysis
The record on mother's petition shows that the majority of her evidence in support related to matters that occurred prior to the court's July 28, 2021, order terminating her reunification services. Because she does not contend that this evidence was not available to her at the time her reunification services were terminated, it cannot be considered new evidence. (In re Matthew M.(2023) 88 Cal.App.5th 1186, 1195 ["'"[T]he term 'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered"'"].)
The only references to matters that occurred after July 28, 2021, was (1) evidence that mother was discharged from the Recovery Support Service Program on October 5, 2021; and (2) her testimony that she had been visiting the children once a week for two hours per visit during which they watched movies, played at the park, picnicked, and conversed about school and friends.
The evidence of her discharge from support services program showed only that mother may have received some support services during the month of August 2021; but it did not explain the reasons for her discharge. More importantly, it did not support a reasonable inference that mother had successfully completed the support services program and did not rebut mother's admission that she had stopped court-ordered drug testing on June 30, 2021. Thus, mother showed only that she stopped participating in support services shortly after her reunification services were terminated, a change in circumstance that did not support a finding that a change in order was appropriate.
Similarly, the evidence regarding her more regular visitation was, at best, an indication that mother's circumstances may have been changing, but had not yet changed. A "showing of changing circumstances is not sufficient to require a hearing on the merits of [mother's] section 388 petition." (In re A.S. (2009) 180 Cal.App.4th 351, 358. Accordingly, the juvenile court did not abuse its discretion when it denied the section 388 petition without a hearing.
B. ICWA Compliance
Mother also contends that the Department failed to comply with its duty of initial inquiry under ICWA. According to mother, the record does not reflect that the Department made inquiry of extended family members that were reasonably available, including the maternal grandmother and a maternal aunt, both of whom resided on the same property as mother.
Here, the juvenile court entered its order denying the section 388 petition at a time when the proceedings, including ongoing permanency planning proceedings, were ongoing. Given that procedural posture, there will necessarily be further proceedings at which mother's complaints of noncompliance can be raised and addressed by the juvenile court in the first instance. We therefore conclude that mother's ICWA challenge is moot. (In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638-639; In re S.H. (2022) 82 Cal.App.5th 166, 179 ["So long as proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry, both the [Department] and the juvenile court have an adequate opportunity to fulfill those statutory duties"].) We have also considered the factors bearing on discretionary review of moot questions as identified in In re D.P. (2023) 14 Cal.5th 266, at pages 286 through 287, and decline to exercise our discretion here.
IV. DISPOSITION
The order denying the section 388 petition is affirmed and mother's challenge to the Department's ICWA compliance is dismissed as moot.
We concur: BAKER, Acting P. J. MOOR, J.