Opinion
A131611
01-04-2012
In re S.R. et al., Persons Coming Under the Juvenile Court Law. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. JV320229)
INTRODUCTION
This appeal follows on the heels of our prior decision in this matter in In re V.R. (A129712, Nov. 29, 2011) (V.R.). The case involves an original petition filed in June 2009 pursuant to section 300 of the Welfare and Institutions Code in regard to mother's three children, her son V.R., daughter S.R. and son V.R. III. After mother successfully completed six months of reunification services addressing the problems identified in the original petition (principally abuse of controlled substances and unsanitary living conditions), but before the 12-month review on the section 300 petition, respondent filed a subsequent petition pursuant to section 342, alleging an incident of sexual abuse by mother on S.R. during an unsupervised visit. In August 2010, the juvenile court sustained jurisdictional findings on the section 342 petition and terminated mother's visitation with all three children. Following the jurisdictional hearing on the section 342 petition, mother filed a notice of appeal (NOA). After mother filed her NOA, the juvenile court held a joint dispositional/12 month review hearing (joint hearing). After the joint hearing, the juvenile court issued an order setting a section 366.26 hearing and dispositional orders on the section 342 petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The section 300 petition also alleged father sexually abused V.R. The petition did not implicate mother in that sexual abuse and father was subsequently by-passed for services pursuant to section 361.5, subdivision (b)(6).
The petition alleged mother inserted a pencil into S.R.'s vagina.
The hearing combined a 12-month review hearing on an original petition filed pursuant to Welfare and Institutions Code section 300 with a disposition hearing on a subsequent petition filed pursuant to section 342.
In V.R., supra, we dismissed mother's appeal challenging orders made when the juvenile court set the section 366.26 hearing on the grounds mother failed to file a writ petition. (See § 366.26, subd. (l)(2).) Also, construing mother's NOA from the August 2010 jurisdictional hearing as a premature appeal from the disposition order on the subsequent section 342 petition, we determined substantial evidence supported the juvenile court's jurisdictional findings and its order terminating visitation.
In this appeal, mother challenges the juvenile court's denial of her section 388 modification petitions, which mother filed before the section 366.26 hearing scheduled in January 2011. Mother contends the juvenile court abused its discretion and violated her right to due process when it denied her request to continue the hearing on the section 388 petition. Mother also contends the juvenile court abused its discretion in denying her section 388 petitions without holding a hearing on the matter. We find sufficient merit in the latter contention and remand for a hearing on mother's section 388 petitions.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference herein the factual and procedural background section in V.R., which covers the history of the case in detail up to and including the joint hearing held on September 20, 2010. At the joint hearing, the juvenile court calendared a section 366.26 hearing for January 10, 2011. Respondent filed a section 366.26 report on January 5, 2011. In the report, respondent and the Adoptions Services Bureau jointly requested that the section 366.26 hearing be continued for 180 days "to identify suitable fost/adopt homes for the children and allow time for a completed assessment by a State Adoptions Specialist."
On January 6, 2011, mother filed three separate but identical section 388 petitions, one for each of her children, requesting that based upon changed circumstances the court permit mother to resume visitation, grant mother a further six months of reunification services, and vacate the upcoming section 366.26 hearing. Each petition stated that since mother's visits and family reunification services were terminated, mother has enrolled in parenting courses, attended courses at Santa Rosa Junior College in pursuit of a nursing degree, graduated from Women's Recovery Services 12-Step program, obtained employment and received counseling services. Mother provided documentary evidence in support of the changed circumstances.
Mother was present with counsel at the section 366.26 hearing on January 10, 2011 before Judge Lechowick. Judge Lechowick also presided at several previous hearings during this dependency proceeding. Counsel for respondent requested the matter be continued for 60 days to complete the adoption assessment on the children. The court granted respondent's request and continued the 366.26 hearing to January 31, 2011. The court also set the hearing on mother's section 388 petitions on January 31st. On January 23, 2011, respondent filed a response to mother's section 388 petitions, requesting that the petitions be summarily denied.
Judge Mann presided over the January 31 scheduled hearing. Mother was present and represented by counsel. Counsel for respondent requested the hearing on the section 388 petitions and the section 366.26 hearing be continued until March 7 so the matters could be heard together by Judge Lechowick. Counsel for father joined in the request for a continuance in order to secure father's attendance through the California Department of Corrections (CDC). Counsel for mother voiced no objection to continuing the section 366.26 hearing but in regard to the section 388 petitions stated, "[M]y client does reside out of county, and she would like to proceed today" with her testimony. Judge Mann continued both matters, finding "good cause to continue the .26 hearing" due to father's absence and the section 388 hearing "because it does seek to modify Judge Lechowick's orders and . . . he would be the appropriate person to hear that." Judge Mann set both matters for March 7, 2011.
On March 7, 2011, Judge Lechowick called both matters for hearing. Mother's counsel, minors' counsel and father's counsel were present. Father was not present. Mother apparently intended to appear by telephone. The transcript of the hearing held on March 7, 20011, reflects that mother's telephonic appearance was cut short when the call disconnected just as Judge Lechowick called the matter. The telephone operator indicated that someone at the other end of the line was trying to contact mother before mother left the building. The record does not conclusively establish whether mother voluntarily disconnected the call or whether some technical problem or human error caused her to be disconnected.
After mother was disconnected, counsel for father requested a further continuance of the section 366.26 hearing because he had "run into a roadblock with CDC locating the father." Counsel for respondent voiced no objection to continuing the section 366.26 hearing but objected to continuing the hearing on mother's section 388 petitions. Counsel for mother informed the court that mother was present on January 31 when she requested that the court hear her section 388 petitions. In light of mother's previous appearance, counsel requested that the court continue both matters to allow her client to appear in person. The court granted the request to continue the section 366.26 hearing, postponing it to April 4, 2011. However, the court denied the request to continue the hearing on the 388 petitions and summarily denied the petitions with respect to the two younger children, S.R. and V.R. III. The court continued the section 388 hearing on the oldest child, V.R., to April 4 based on new information concerning his adoptability. Mother filed a timely notice of appeal from the juvenile court's section 388 orders on March 28, 2011.
Accordingly, our remand order applies only to S.R. and V.R. III.
DISCUSSION
Section 388 provides in pertinent part: "(a) 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 circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." (§ 388, subds. (a), (d).)
"Section 388 plays a critical role in the dependency scheme. Even after family reunification services are terminated and the focus has shifted from returning the child to his parent's custody, section 388 serves as an 'escape mechanism' to ensure that new evidence may be considered before the actual, final termination of parental rights. (Citation.) It 'provides a means for the court to address a legitimate change in circumstances' and affords a parent her final opportunity to reinstate reunification services before the issue of custody is finally resolved. (Citation.)" (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) In fulfilling this role, section 388 is "central to the constitutionality of the dependency scheme." (Ibid.; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309 [section 388 is one of the "significant safeguards" built into the dependency scheme ensuring parents receive substantive due process].)
Moreover, consistent with section 388's important role in the dependency scheme, a petition filed under that section must be "liberally construed in favor of its sufficiency. (Citation.) Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing. (Citation.) The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction. (Citations.)" (In re Angel B. (2002) 97 Cal.App.4th 454, 461; see also In re Marilyn H., supra, 5 Cal.4th at p. 310 ["The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing [on a section 388 petition]. (Citation.)"]; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433 [stating that to be entitled to a hearing on her section 388 petition, mother "needed only to show 'probable cause'; she was not required to establish a probability of prevailing on her petition. (Citations.)"].)
We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. (In re Angel B., supra, 97 Cal.App.4th at p. 460.) "Whether Mother made a prima facie showing entitling her to a hearing [on her section 388 petition] depends on the facts alleged in her petition, as well as the facts established as without dispute by the court's own file. . . ." (Id. at p. 461.) "Although the specific factors a court must consider vary with each case, each child's best interests would necessarily involve eliminating the specific factors that required placement outside the parent's home (citations) . . . ." (Id. at pp. 463-464.)
In this case, mother's section 388 petitions allege that after termination of reunification services, mother enrolled in a parenting class, attended community college classes in pursuit of a nursing degree, graduated from a drug dependency recovery course and obtained employment. Mother provided documentation to support these allegations. Additionally, mother's petitions alleged she had received counseling. In light of the allegations of the original dependency petition, mother's alleged efforts represent significant strides by mother in "eliminating the specific factors that required placement outside the home" (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464), as identified in the original section 300 petition ("section 300 factors"), and as such would tend to serve the children's best interests, (id.). Admittedly, the impact of these efforts on the allegations of sexual abuse identified in the subsequent section 342 petition ("section 342 factors") is less clear. Moreover, gauging the impact of mother's efforts on the section 342 factors is complicated by the fact that mother never received a case plan or any reunification services to address the section 342 allegations, which involved a single incident of abuse against the middle child seemingly unrelated to the allegations of the original section 300 petition. (Cf. In re Barbara P. (1994) 30 Cal.App.4th 926, 933-934 [concluding that whereas "a finding of jurisdiction on a subsequent petition should not automatically trigger a new period of reunification services," failure to order additional services constitutes reversible error if the services already offered failed to address "the concerns raised by the subsequent petition"].)
Nevertheless, under the particular circumstances presented here — where mother's section 388 petition presented prima facie evidence of changed circumstances that included enrollment in parenting classes and counseling — we conclude the juvenile court abused its discretion by denying mother a hearing on her section 388 petition because she had not "addressed the psychological aspects of the problems" identified in the section 342 petition. Rather, consistent with the liberal standard governing the right to a hearing on a section 388 petition (see In re Angel B., supra, 97 Cal.App.4th at p. 461), we conclude mother alleged facts sufficient to warrant a hearing to establish whether the counseling she received, in conjunction with her other efforts, amounted to changed circumstances warranting the relief requested (resumption of visitation and a further period of reunification services). (In re Hunter S., supra, 142 Cal.App.4th at p. 1506. [section 388 hearing affords a parent a "final opportunity to reinstate reunification services before the issue of custody is finally resolved. (Citation.)"].)
DISPOSITION
The matter is remanded for further proceedings on the section 388 petitions for the two younger children, S.R. and V.R. III.
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Jenkins, J.
We concur:
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Pollak, Acting P. J.
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Siggins, J.