Opinion
A153761
12-14-2018
In re N.W., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. Rebecca W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKJVSQ 13-16784)
About four years after N.W. (Minor) was first detained from his mother under Welfare and Institutions Code section 300, he was placed with his maternal grandmother, Rebecca. A few months later, the court sustained a petition filed by the Mendocino County Department of Social Services (Department) under section 387 and removed Minor from Rebecca's care. Although Rebecca and counsel for the Department had argued on more than one occasion to appoint counsel to represent Rebecca in connection with the section 387 petition, the court denied the requests. Some months after that, Rebecca, acting in pro per, filed a section 388 petition asking the court to return Minor to her care. The petition was summarily denied on the grounds that it did not state new evidence or a change of circumstances, and Rebecca appeals. Now represented by counsel, Rebecca asks that we reverse the denial of her section 388 petition, remand the matter for a hearing on the merits of the petition, and instruct the court that counsel be appointed to represent Rebecca at that hearing. We shall grant the relief requested.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Detention Through Termination of Mother's Reunification Services: May 2013 Through October 2014
In May 2013, the Department filed a petition under section 300, subdivision (b) (failure to protect), for Minor, then age 6, and his maternal half-sister (Sister), then age 4. At the jurisdiction hearing in July 2013, the allegations against Mother were dismissed, and the children were returned to her with family maintenance services. In October 2013, the Department filed a supplemental petition alleging that Mother endangered the children. The court sustained the allegations in the petition, and the children were placed together in foster care.
The section 300 petition also included allegations about Sister's father, which have no bearing on this appeal. Minor's father is unknown.
In its disposition report for the supplemental petition, the Department stated that Minor was "aggressive towards [Sister] and has kicked and thrown things at her. It appears that she can provoke him at times as well." The Department noted that Rebecca expressed interest in providing long-term placement for the children, that her current apartment was not adequate for two children, and that the social worker would continue to consider placement with Rebecca if her living circumstances changed. At the disposition hearing, the court ordered that reunification services be provided to Mother and instructed the Department to "keep working with the grandmother on placement."
By the time of the Department's October 2014 report for the 12-month review hearing, Minor, who exhibited verbal and physical outbursts of anger at his previous foster placement, had been moved to a new foster home where he was improving his social skills and making progress in therapy. Sister had been placed with Rebecca, and Minor had overnight visits at Rebecca's home every other week. The department outlined a plan in which Minor would eventually be placed in Rebecca's care "as he makes progress in therapy." At the review hearing, the court terminated Mother's reunification services as to both children and set a section 366.26 hearing for February 2015. The court ordered that Minor's overnight visits at Rebecca's home continue, and stated, "Visits may occur more frequently, as activity and school schedules allow." The court identified March 2015 as "a likely date by which the children may be placed for adoption, appointed a legal guardian, placed permanently with a relative, or placed in an identified placement with a specific goal." B. Permanency Planning: February 2015 Through August 2015
Although Mother's reunification services were terminated, she has retained her parental rights throughout the course of the dependency, and she has been represented by counsel at all hearings.
The Department's report for the February 2015 section 366.26 hearing included information about Minor from several sources. Rebecca, who expressed interest in adopting both children, reported that at times Minor got angry and aggressive with Sister and had to be closely monitored. A social worker who supervised a visit between the children and their baby half-sibling, which Rebecca also attended, wrote that Rebecca "was not up to dealing with" Minor. The social worker observed that Minor "didn't want to listen to his grandmother or to me; when I told him he had to stop running his trike into his [siblings] or tell [him] to stop doing something and he would ask why, . . . 'because you could hurt your sister' wasn't enough." Minor's therapist reported that Minor required monitoring around younger children, and struggled with behaviors including pushing, spitting and swearing. The foster agency reported that Minor misbehaved at school; fought on the bus; and sometimes bullied smaller children.
The Department's report included an assessment prepared by the Adoptions Services Bureau of the state's Health and Human Service Agency (State Adoptions). State Adoptions concluded it would be in Minor's best interest to remain in foster care through the school year or longer, as he had "behavioral issues that continue to be addressed within the structure of the foster home." Concluding that Minor and Sister would "benefit from having separate, stable residences with gradual increased overnight and weekend visits for [Minor] at his grandmother's home," State Adoptions recommended that the court order a permanent plan of adoption without terminating parental rights; that the court order additional efforts be made to "ensure that moving [Minor] to the home of his maternal grandmother would be in his best interests as well as the best interests of [Sister]"; and recommended a further hearing be set within 180 days.
Minor's visits with Rebecca were discussed at the section 366.26 hearing. Mother's counsel asked that the visits, which occurred every other week for the entire weekend, be increased to every weekend. But the court agreed with Minor's counsel and the Department that visits should not be increased, and stated, "For now, based on the information in the report, I don't think it would be in his best interest to have weekend visits every week. It does undermine the foster family, the progress he's making in the foster family for his own personal growth if every weekend he's gone." The court also stated that the Department had discretion to increase visitation with Rebecca "as more progress is made." The court found it likely that Minor would be adopted, ordered adoption as the permanent placement goal, and set a further section 366.26 hearing for August 2015.
In its report for the second section 366.26 hearing, the Department reported that Minor was happy in his foster home and had expressed worry that he might have to leave it. He also enjoyed visiting with Rebecca and Sister. Rebecca reported that she had to monitor Minor closely during visits to ensure he was not too rough with Sister. Minor had missed his baseball team practices during his weekend visits with Rebecca because she was reluctant to drive with both children in the car: their squabbling made her nervous. The social worker told Rebecca that being able to drive 25 minutes safely with both children in the car was a consideration in having both children live with her. The social worker reported that toward the end of a visit between Minor and Rebecca that she observed, Minor asked Rebecca if he had earned the $10 she promised him for being good. The social worker opined that although Rebecca did well with the every-other-weekend visits, it would be too challenging for her to have Minor full-time. The Department supported the visits but believed that full-time placement of Minor with Rebecca would likely be a physical detriment to Sister.
State Adoptions determined that Minor was not likely to be adopted and recommended an alternative permanent plan of long term foster care. Minor often misbehaved at school and on the bus, was physically aggressive, and refused to follow instructions from adults except in the presence of his foster father. State Adoptions noted that Minor had made progress but expressed concern for Sister if Minor moved to Rebecca's home. Minor had been observed pushing Sister aside when he did not receive enough attention or when he was angry; he had thrown objects at Sister when he was not winning at a game; and he had been seen swinging a baseball bat even though Sister or others were in the path of the bat. Minor's foster family did not wish to adopt him, but were committed to providing long-term care for him, and Minor expressed no disappointment when told he would not be moving to Rebecca's home at that time.
At the August 2015 hearing, Mother's counsel offered into evidence, and the court accepted, various documents including a certificate showing that Rebecca had completed a parenting course and several letters of reference in support of Rebecca adopting both children. Rebecca addressed the court and opined that part of Minor's anger was his resentment that Sister lived with her full-time while he did not. She reported that the parenting class had been helpful to her in addressing Minor's behavior.
The court found that Minor was not currently an adoptable child, and identified as a goal that he be permanently placed in the future with Rebecca if his behavior improved to the point that she could safely have him in her home and adequately protect Sister in the process. C. Post Permanency Proceedings
1. First Review Hearing: February 2016
A first post-permanency review hearing for Minor was scheduled for February 2016. Rebecca had filed a request for de facto parent status, which was set for hearing on the same day. In its report for the review hearing, the Department noted that Minor was in his 17th month with his foster family, who remained committed to fostering him and who noted improvement in his behavior over the past year. Minor had been sent home from his after-school program for failure to follow directions, and was working with his therapist on "his bullying, racism, and oppositional behaviors." The report identified a new medical condition that required Minor to attend appointments in San Francisco at UCSF. Minor continued to have regular visits with Rebecca and Sister. Rebecca requested to adopt Minor, as she was adopting Sister, but the social worker stated that Rebecca was "challenged to parent both children on a full time basis," and reported that "she struggles with driving the children out of town or at night as they tend to engage in sibling bickering which makes her nervous," and that Rebecca would not be able to provide transportation for Minor's medical visits in San Francisco. The Department recommended a permanent plan of legal guardianship with a specific goal of dismissal of dependency.
At the hearing, the court adopted the Department's recommendation, and further ordered that Rebecca be "actively considered as a possible guardian." A second review hearing was set for July 2016. The court then considered Rebecca's application for de facto parent status. Rebecca addressed the court and explained that she wanted access to court papers to know more of what was going on with Minor and be better able to help him. She said that her goal was to have Minor in her care, that she felt the Department was not working with her on that, and that she wanted a lawyer to be appointed for her. The juvenile court judge noted that appointment of an attorney did not "automatically flow" from de facto parent status. The Department supported Rebecca's request, agreeing "that the grandmother meets the criteria of the definition of de facto parent" and stating that it had no objection. Minor's counsel argued that Rebecca did not qualify for de facto parent status because she had not lived with Minor for a substantial period of his life. Minor's counsel also argued that Rebecca was adequately informed: she attended court hearings and participated in them and had contact with Minor's counsel and with the social worker, who tried to keep Rebecca informed about what she could do for Minor. And Minor's counsel argued that the point of de facto parent status was not to allow "access for somebody, it's to give the court information," and that Rebecca did not have the day-to-day living experience with Minor that would lead to de facto parent status. Mother's counsel argued that Rebecca had the ability to provide the court information that it would not have in the absence of de facto parent status, and also argued that an attorney should be provided to Rebecca "so that she can work on achieving the placement." The court then denied Rebecca's request, stating that she did not meet the criteria for de facto parent status because had it been close to five years since she had regular daily contact with Minor, and visitation did not rise to the level of de facto parent status. The court expressed its appreciation of Rebecca's attendance at and participation in the hearings, and stated that it looked forward to her continuing involvement in the proceedings.
2. Second Review Hearing: July 2016
In its report for Minor's second post-permanency hearing in July 2016, the Department stated that Minor was doing "exceptionally well" in his foster placement and had "overcome challenging behaviors at a remarkable level which evidences that moving him at this time would not be in his best interest." The Department noted, however, that Rebecca was adamant that she wanted Minor placed in her home in adoption or guardianship. Observing that Rebecca had not had the opportunity to see how well she would do with Minor on anything other than the current visit schedule, the Department proposed revised orders to give the social worker more discretion to increase Minor's visits with Rebecca to see how Minor responded, and stated that it was preparing a written plan to assist Rebecca in managing Minor's behavior at the level of the foster placement. The revised orders included Minor spending up to three weeks with Rebecca in late summer and having visits over holiday breaks from school. In an addendum report, the Department stated that at Rebecca's request, the Department had submitted another referral to State Adoptions, and that because Rebecca could not accommodate Minor's schedule of activities, the planned three-week visit was reduced to 10 days. The social worker noted that Rebecca "loves [Minor] dearly and does well with him during visits. She deserves the respect to be relooked at as a possible adoptive placement for [Minor]. However, the [Department] is not supporting a change in his placement at this time."
At the hearing, Minor's counsel stated that she agreed with the social worker's observations, that Minor was very happy at his foster placement and enjoyed visiting Rebecca. The social worker noted that Rebecca did not receive court reports, and that she wanted to state on the record that the reports discussed Rebecca's great love for Minor. The juvenile court judge then addressed Rebecca: "Even though I did not grant you de facto parent status, if you had something—I'd allow you to speak and let the Court know if you had other concerns. [¶] I'm not going to let you go [on] for a lengthy period of time, but if you had some things you wanted to advise the court about that you thought I might not know about, I'd be willing to let you do that right now." Rebecca then stated that she felt Minor was not truly happy at his foster placement, but rather had accepted it. She felt Minor and Sister should be raised together, and her goal was to raise them both. The court responded, "Your efforts with respect to your grandchildren are not being overlooked. [¶] I'm well aware obviously as to your involvement in both of their lives."
The court adopted the Department's proposed orders, with a 10-day visit instead of a three-week visit, and the permanent plan of placement with Minor's foster parents with a specific goal of legal guardianship. A third semiannual review was scheduled for January 2017.
3. Events Leading to Third Review Hearing: January through March 2017
In a January 2017 report, the Department stated that Minor had greatly improved since his initial placement at his foster home. He was visiting Rebecca and Sister every other weekend and over school breaks, and those visits, as well as the 10-day visit during the summer, all went well. Minor told the social worker he wanted to live with Rebecca and Sister. The juvenile court had appointed a Court Appointed Special Advocate (CASA) for Minor in September 2016, who also reported that Minor wanted the judge to let him live with Rebecca and Sister and who supported the re-referral of the case to State Adoptions. State Adoptions reported that Minor was generally doing well but had "setbacks" including bullying other children and defying after-school personnel. State Adoptions recommended that Minor remain in his current placement, that his visits with Rebecca "remain supported and encouraged by the foster care providers and the Department," and further recommended that, because Rebecca "may be willing and able to adopt [Minor] when his behavior stabilizes," the Department set a new section 366.26 hearing to address the possibility of a change in Minor's permanent plan if Minor maintained his progress and emotional stability at the time of the next review hearing.
The review hearing was continued several times, and did not take place until March 2017. Meanwhile, in February, Minor was placed in Rebecca's care, so by the time of the hearing in March he had been in her care for just over a month. At the hearing, the court granted a request from Minor's CASA advocate that Rebecca be assigned educational rights, ordered a permanent plan of placement with Rebecca with a specific goal of adoption, and set a section 366.26 hearing for July 2017. D. Placement with Rebecca
1. Section 366.26 Hearing: July 2017
In advance of the section 366.26 hearing, the Department reported that Minor had spiraled downward behaviorally, academically, and socially since his placement with Rebecca, to the point that State Adoptions withdrew its support of Rebecca as an adoptive placement and recommended long term foster care for Minor instead. Rebecca was having difficulty controlling Minor's behavior, including his school attendance and his screen-time after bedtime. Minor was hitting and punching Sister, was hitting Rebecca, was bullying children at school, and had required a mental health crisis intervention. Rebecca had removed Minor from school and placed him on independent study without informing the Department. Rebecca used money to bribe Minor for good behavior, which left her unable to pay utility bills. In addition, there was a concern that Minor was extorting money from Rebecca: he had required her to pay him to go on an outing with Sister, and when Rebecca gave him $5, Minor countered that he wanted $20. Sister said that she and Minor were told by Rebecca not to tell the social worker or Department anything, especially things that went on in the home. Rebecca was unaware that Minor was waking Sister in the night to play games, and that Minor and Sister had left the house unsupervised one night while Rebecca slept. Minor would not comply with Rebecca's instructions to wear the orthotics required for his medical condition, nor would he comply with simple directives from her such as putting electronics away during a meeting. The Department recommended that the permanent plan be placement with Rebecca and a specific goal of guardianship.
At the section 366.26 hearing on July 19, 2017, Minor's counsel requested that the permanent plan remain adoption, arguing that although the present situation "needs some work," it was possible that things would improve with Rebecca, and that even if they did not, Minor could be adoptable in the right home. Minor's CASA concurred, as did State Adoptions, which noted that the family was now receiving additional services, and argued that there should be "more time for the family to gel together." The juvenile court ordered a permanent plan of adoption, without reference to a particular adoptive family, and set a six-month post-permanency review for January 2018.
2. Section 387 Petition: August 2017
In August 2017, about a month after the section 366.26 hearing and about six months after Minor was placed with Rebecca, the Department filed a petition under section 387 asking the juvenile court to remove Minor from Rebecca's care, alleging that Rebecca was unable to provide the level of care required to meet Minor's mental health and behavioral needs, thus putting Minor, Rebecca and Sister at severe risk of harm. The Department reiterated concerns raised in its report for the section 366.26 hearing, and included new information from Rebecca's "Parent Partner," who drove Rebecca, Minor, and Sister to San Francisco for one of Minor's medical appointments. The Parent Partner reported that Minor's behavior escalated while waiting for and traveling home from the appointment. He was violent toward Rebecca and Sister in the waiting room, and Rebecca did not intervene. On the way home, he had a tantrum and threw things into the front driving and passenger areas of the car. Rebecca, who was sitting in the front seat with the Parent Partner, was not able to redirect Minor, who was sitting in the back with Sister, so the Parent Partner pulled off the road and had Rebecca sit in the back with Minor, who nevertheless repeatedly threatened Sister, saying "I'll slit your throat, bitch."
Section 387 provides that an order modifying a previous order by removing a child from the physical custody of a relative and directing placement in a foster home may be made only after a noticed hearing upon a supplemental petition. (§ 387, subd. (a).) The petition must "contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . ." (§ 387, subd. (b).) The Department "has the burden to show by a preponderance of the evidence that the factual allegations alleged in the petition are true." (In re H.G. (2006) 146 Cal.App.4th 1, 11.)
The trip to San Francisco occurred on July 18, 2017, the day before the section 366.26 hearing, but was not mentioned at the hearing. The Department stated that it did not receive the Parent Partner's report until August, because the Parent Partner left on a vacation immediately after the trip to San Francisco.
At the detention hearing, counsel for the Department asked the court to appoint counsel for Rebecca for the section 387 hearing because "the allegations are in some way against her" and she was currently living with Minor. Minor's counsel opposed the request, arguing that Rebecca lacked standing, and her previous request to be a de facto parent had been denied and was not renewed. Minor's CASA and counsel for Mother supported the Department's request. Rebecca addressed the court and stated that she was doing the best she could, that Minor was involved in counseling, that there had been no incidents since the trip to San Francisco, and that she felt she was being treated unfairly and would like an attorney. The court detained Minor, set a hearing on whether counsel should be appointed for Rebecca, and set a contested jurisdiction hearing to follow the hearing on appointment of counsel.
At the next hearing, counsel for the Department argued at length that counsel be appointed for Rebecca: "Your honor, we had asked that an attorney be appointed for the grandmother for equitable and due process reasons. I acknowledge that there's not any legal standing, necessarily, for that; however, I know this court has appointed counsel on a 387 Petition before specifically for that purpose. The allegations involve incidents while in the grandmother's care. [¶] We're dealing with a legally unsophisticated grandmother here, who actually did apply for de facto status earlier this year at the time when she didn't have the children. It was summarily denied, and then the children have moved back in her place. Now, she never refiled, but again, she's not a legal expert. [¶] She had shown interest in being that before she had the children and now she has them. Now she has a 387 directly involved in her conduct. I think it's only fair that she at least have an attorney for this hearing." Mother's counsel supported the Department's request. Minor's counsel argued against the appointment, noting that Rebecca had no standing as a grandmother or prospective adoptive parent. She pointed out that "[h]aving previously applied for de facto status and been denied . . . does not give you that status going forward in the future, and there's no motion pending." She further argued that even if a motion were pending, it would not necessarily be granted. And she argued that Rebecca had successfully advocated for herself in the community and through the Department to get Minor in her care, and had consulted with attorneys who had in turn reached out to Minor's counsel.
Counsel for the Department misspoke in referring to "children," as Minor's counsel later pointed out. In 2016, when Rebecca applied for de facto parent status as to Minor, Minor was not living with her, but Sister was. By January 2018, Rebecca had adopted Sister.
The court declined to appoint counsel, stating, "Given that [Rebecca] is not being looked at as a prospective adoptive parent or placement for [Minor], I do not see a benefit, at this point in time, to appoint counsel for [her]. It obviously would help her, but it doesn't necessarily help [Minor], which is what I'm looking at. Nor do I see that there's any requirement, and nobody's arguing that there's a requirement, that I appoint counsel." The court stated that Rebecca was welcome to be present at hearings, as she had in the past.
The Department's jurisdiction report recommended a permanent plan of placement in the foster household where Minor had lived from 2014 through January 2017, with a specific goal of legal guardianship.
In advance of the jurisdiction hearing, Rebecca filed a declaration in pro per in which she requested that the court return Minor to her care. She outlined her qualifications to care for Minor, and her complaints about the Department, the Parent Partner, including specifically the Parent Partner's behavior on the trip to San Francisco, and the care Minor received in his foster placement.
Rebecca stated that she had an associate's degree in child development, and was just a few credits short of her bachelor's degree. She had worked as a child counselor in schools and other facilities.
At the jurisdiction hearing on August 30, 2017, the Department renewed its request that counsel be appointed for Rebecca: "We're now getting pleadings of some nature responsive to this as if she's participating. I feel like we're half in, half out. I think in the interest of justice she should be appointed counsel." The court affirmed its prior ruling, and then briefly discussed Rebecca's declaration, describing it as "referencing an opposition to the permanent placement of the minor in the foster system, which is somewhat different than the issue before the Court today which is the 387 jurisdictional hearing." The court ultimately stated it would read and consider Rebecca's declaration to the extent it was relevant to the section 387 petition. The court accepted Mother's counsel's offer of proof that Rebecca would testify that Minor did not extort her and there was only one incident of Minor leaving the house at night. There was no objection to the jurisdiction report being received in evidence, and no further evidence was presented or offered to the court. The court then heard argument, during which Mother's counsel argued that the petition be dismissed on the grounds that the Department had not met its burden of proof, and counsel for Minor and the Department argued that the allegations be sustained. Minor's counsel noted that whether Mother or Rebecca approved of the home in which Minor was living was irrelevant to the truth of the allegations in the section 387 petition, and counsel for the Department noted that the only allegation in the section 387 petition that was challenged was the allegation that Minor was extorting Rebecca. The court sustained the allegations in the petition, and made the following statement: "The Court is well-aware that [Minor] has significantly harder behavioral problems than [Sister]. The Court is very appreciative that [Rebecca] is continuing, obviously, to work with [Sister], and, obviously, the adoption hopefully is still on track, and recognizes that the children are very differently situated in that regard. [¶] And this is not meant to be an attack at all on [Rebecca] and her capabilities. [Minor] is a difficult boy to work with. I think the Department has evidence that they've provided a lot of services, even within [Rebecca's] home, but that it still has not worked for [Minor] and jeopardizes at some level [Sister's] situation as well."
The court heard argument regarding the permanent plan and ordered a permanent plan of placement with "unspecified," rather than with the previous foster family, and a specific goal of adoption. The court asked the Department to look into various concerns expressed about the foster household, and stated, "I do want to make it clear that when I made my determination on the 387 decision, this was not a comparative to one home being better than the other. This is a determination that I sustained the allegation that [Rebecca] was unable to properly care for [Minor]. So it was by no means a stamp of approval on the current placement. I'm not necessarily saying it's not a good place neither [sic]. But I think it makes sense to look into it." A fourth semi-annual review of the permanent plan was scheduled for January 2018. E. Rebecca's Section 388 Petition: December 2017
In December 2017, Rebecca, acting in pro per, filed a petition under section 388 asking the court to change the orders removing Minor from her and placing him in foster care, and to return Minor to her custody and provide her with family reunification services. She claimed that the Department's jurisdiction report, which she had not seen until after the August 30, 2017 hearing, misrepresented facts and circumstances. Rebecca supported the petition with a declaration setting out her version of the events during the trip to San Francisco with the Parent Partner, in which she criticized the Parent Partner's behavior. According to Rebecca, Minor was simply playing in the waiting room, and his actions in the car were in response to the unprofessional behavior of the Parent Partner, who, among other things yelled at Minor and called him a "dumbass," and refused to allow a stop for food, with the result that the children had nothing to eat between lunchtime and 8:30 p.m. Rebecca also filed a memorandum of points and authorities, signed under penalty of perjury, in which, among other things, she claimed that "[e]very single statement that was made in . . . the 'Jurisdictional Facts' section [of the report] is untrue or a gross manipulation of true circumstances." She identified seven separate statements and conclusions in the jurisdiction report that she believed were in error, and offered her view of the relevant facts. She argued not only that the Department's jurisdiction report was incomplete and incorrect, but also that the Department failed to meet its burden of proof in the section 387 hearing, and that the social workers and Department failed to comply with section 361.3, which states that preferential consideration is to be given to a relative's request that a child be placed with her.
The juvenile court summarily denied the section 388 petition without a hearing on the grounds that it did not state new evidence or a change of circumstances. Rebecca timely appealed, and at her request, this court appointed an attorney to represent her on appeal.
DISCUSSION
A. Applicable Law and Standard of Review
Section 388 provides that, "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court" may petition the court "for a hearing to change, modify, or set aside" a previous court order. (§ 388, subd. (a)(1).) The petitioner "has the burden to show, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests." (In re A.S. (2009) 180 Cal.App.4th 351, 357 (A.S.).) "The court must liberally construe the petition in favor of its sufficiency." (Ibid.) The petitioner " 'need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' " (Id. at pp. 357-358.)
California Rules of Court, rule 5.570(d)(1) authorizes the ex parte denial of the petition if it "fails to state a change of circumstance or new evidence that may require a change of order . . . or fails to show that the requested modification would promote the best interest of the child . . . ."
"We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (A.S., supra, 180 Cal.App.4th at p. 358.) B. Analysis
Rebecca argues that the section 388 petition "presented new information" in the form of her supporting declaration, which, she claims, "was different both in context and thrust" from the declaration she submitted in connection with the section 387 jurisdiction hearing. Our review of the materials Rebecca submitted with her section 388 petition lead us to conclude that she met the statutory requirement of coming forward with new evidence and that the new evidence, if accepted, could mean that a change of the juvenile court's prior order would be in Minor's best interest. For example, with her section 388 petition, Rebecca provided a point-by-point rebuttal of alleged inaccuracies in the Department's jurisdiction report. She contested particular jurisdictional facts alleged by the Department, including, among other things, allegations that Minor consistently ran away from home when he did not get his way, that she locked up her purse because Minor stole money from her, and that she refused to drive out of town with the children because their behavior was beyond her control in a moving vehicle. Because Rebecca had not seen the section 387 jurisdiction report at the time of the August 30 hearing, she could not have provided that information in her declaration opposing the section 387 petition, or at the August 30 hearing. On these facts, we conclude that the juvenile court abused its discretion in ruling that Rebecca's 388 petition did not state new evidence (A.S., supra, 180 Cal.App.4th at p. 358), and therefore we shall reverse the juvenile court's order and remand for a hearing on the merits of Rebecca's petition.
As we note above, at the August 30 hearing, the court accepted an offer of proof that Rebecca would testify to two specific issues: that Minor had not extorted her, and that he had left the house at night only once. The Department argued at that hearing that the limited scope of the offer showed that Rebecca conceded the other allegations in the report. In fact, however, Rebecca did not see the report until afterward, and therefore could not have conceded that its contents were accurate. Furthermore, Rebecca could not even make the offer of proof herself, because she was not a party; the offer was made by Mother's counsel.
Rebecca asks us to direct the juvenile court to appoint counsel to represent her at the hearing on her section 388 petition. We shall grant that request, as we granted her request to appoint counsel for her in this appeal. We find it striking that the Department not only consistently supported Rebecca's requests to be appointed counsel, but also made its own request, which it forcefully argued on three separate occasions, that Rebecca be appointed counsel to represent her in connection with the section 387 petition. As we have outlined above, the history of Minor's dependency is complex, and the juvenile court has ordered different plans for him at different times, based in part on Minor's changing behavioral issues and health needs. Rebecca has been an active and consistent participant in the dependency proceeding, and her determined advocacy, conducted without the benefit of counsel, has contributed to the modification of the plans for Minor. The only person who has expressed interest in adopting Minor, Rebecca has long requested that counsel be appointed for her. We conclude that the appointment of counsel to represent her at the hearing on her 388 petition will serve the interests of justice.
DISPOSITION
The order appealed from is reversed and the matter is remanded for the juvenile court to hold a hearing on the merits of Rebecca's section 388 petition. The juvenile court is directed to appoint counsel to represent Rebecca in connection with that hearing. In the interest of resolving the section 388 petition as quickly as possible, we encourage the parties to consider stipulating to the immediate issuance of a remittitur pursuant to California Rules of Court, rule 8.272(c)(1).
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.