Opinion
G054597
08-18-2017
In re E.J. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.B., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP026050-001, DP026051-001, DP026052-001, DP026469-001) OPINION Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
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INTRODUCTION
R.B. (mother) is the mother of four children who have been removed from her care and custody; mother was denied reunification services. After entry of a disposition order, the Orange County Social Services Agency (SSA) learned the home of C.J. (the father of E.J. and K.J.), in which E.J. and K.J. were to be placed, was unsafe and unsanitary. SSA also learned that C.J. had lied about his criminal history and drug use, and had not performed his case plan. Therefore, SSA filed a supplemental petition pursuant to Welfare and Institutions Code section 387 to change the disposition order as to C.J.'s children, E.J. and K.J. (All further statutory references are to the Welfare and Institutions Code.)
Mother filed a petition under section 388 asking the juvenile court to vacate the jurisdiction and disposition orders for all four children, even the two who were not to be placed with C.J. The court found that mother had not made a prima facie showing of changed circumstances or that a change in the court's order would be in the children's best interests, and denied the petition without a hearing.
Mother filed a second section 388 petition, asking the court to vacate the dispositional orders as to all four children and either return them to her care or order family reunification services. Mother contended that she had completed the necessary classes and services, and that the children were bonded to her. Again, the juvenile court denied the petition on the ground that mother had not shown changed circumstances because most of the evidence supporting her petition was before the court when it issued the disposition orders.
We affirm the juvenile court's orders denying both section 388 petitions without an evidentiary hearing. The court did not err in finding that mother had failed to make a prima facie showing of changed circumstances or that a change in the order would be in the children's best interests. The juvenile court correctly recognized that the issues in this case would properly be considered in SSA's supplemental petition under section 387.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts leading to the children's detention, and the juvenile court's jurisdiction and disposition orders, are set forth fully in our unpublished opinion in a related case. (In re E.J. (May 23, 2017, G054076), opn. mod. June 15, 2017 [nonpub. opn.]).) We incorporate by reference the statement of facts and the procedural history from that opinion here.
Following the disposition hearing, all four children remained in the home of Diane G. and Brad B. (the de facto parents), where they had been living since September 2015. The disposition order, filed in September 2016, required that E.J. and K.J. be placed with their father, C.J., and that J.B. and A.B. be placed with Brad C., with whom their half sibling was placed.
The half sibling, C., was mother's child. C. was the subject of a previous dependency proceeding, and is currently in the sole custody of her father, Brad C. --------
ADDITIONAL FACTS REGARDING C.J., FATHER OF E.J. AND K.J.
In late October 2016, SSA filed an ex parte application apprising the juvenile court of problems identified at C.J.'s home. Specifically, SSA learned in late September that C.J. would not be residing at the home he had described during the disposition hearing. When a social worker visited the home C.J. was actually living in, the common area and kitchen were in disarray. Chemicals and an opened pocket knife were within a child's reach. The room designated for E.J. "had a strong stale odor" and the bed was covered with "bins." The room designated for K.J. had "a strong stale and musty odor . . . along with a slight smell of marijuana." The room had only one bed, although K.J. was to share the room with a half sister. The toilet did not flush, and there was no running water in the house.
C.J. confirmed to the social worker that he had been arrested in December 2015 for receiving stolen property, contrary to his testimony at the jurisdiction and disposition hearings. SSA also reported that local law enforcement advised the social worker that C.J. had been arrested for gun possession, and had been caught stealing items from his own family members.
C.J.'s stepmother told the social worker "she has observed a big deterioration in the father since spring." The stepmother expressed concerns regarding C.J.'s current girlfriend, who had a reported history with the local child welfare agency, and had lost custody of some of her children due to substance abuse. The stepmother explained that their family was currently unwilling to assist C.J. in caring for E.J. and K.J.
C.J. had failed to show up for any of his drug tests.
At SSA's request, the juvenile court granted a protective custody warrant on behalf of E.J. and K.J. based on C.J.'s failure to comply with the court-ordered case plan. The warrant removed the children from C.J.'s custody, and allowed them to be placed in SSA's custody.
In November 2016, SSA filed a supplemental dependency petition for a more restrictive placement, pursuant to section 387, in which it urged the order placing E.J. and K.J. in C.J.'s custody and care was "not effective." SSA's section 387 petition was based on the facts supporting the October 2016 ex parte application, and alleged that "the home where the father . . . resides was found to be in an unsafe and unsanitary condition." The petition also included allegations of C.J.'s criminal history, his "unresolved substance abuse problem," and the fact he "has missed all his drug tests (eight) and has yet to call into the drug testing hotline, which he is required to do on a daily basis."
Later in November 2016, mother filed a section 388 petition, requesting that the juvenile court vacate its jurisdiction and disposition orders based on alleged fraud committed against the juvenile court by C.J. and other witnesses, and hold a new evidentiary hearing on jurisdiction and disposition. Mother's request was based on the following grounds: "Father, . . . , [the paternal grandparent] and other witnesses have committed fraud on the court regarding his criminal felony arrests including receipt of stolen property, gun charges and illegal drug issues, further, Mr. J[.] had committed fraud regarding his residence and the condition of his home, the C[.] family has new domestic violence issues in their current relationship including injuries to both parties."
The de facto parents also filed a request that the juvenile court vacate its disposition order placing E.J. and K.J. with C.J., on the ground that it was "discovered after the ruling on the dispositional hearing . . . that father was arrested and pled guilty to receiving stolen property in Dec. 2015, that father had guns in his home, that father had illegal drugs in [the] home, that father's home had no running water or electricity, and that father has a relationship that is unsafe."
ADDITIONAL FACTS REGARDING J.K. AND BRAD C., FATHER AND PROPOSED CARETAKER,
RESPECTIVELY, OF J.B. AND A.B.
An addendum report filed by SSA in November 2016 claimed that J.K. (father of J.B. and A.B.) had failed to begin any of his court-ordered services, and had failed to show up for any scheduled drug tests, although the social worker had explained reunification services could be terminated and his children released for adoption. The addendum report also included information on an incident of domestic violence between Brad C., the proposed caregiver for J.B. and A.B., and Jessica W., Brad C.'s "significant other." Charges were brought against both Brad C. and Jessica W.
In November 2016, the de facto parents filed section 388 petitions asking the juvenile court to vacate the dispositional orders placing J.B. and A.B. with Brad C., and to place J.B. and A.B. with the de facto parents. The de facto parents contended that Brad C. had been arrested for inflicting domestic violence on his significant other, making the placement unsafe for the children. The de facto parents also contended that J.B. and A.B. were bonded to their older siblings, who were placed with the de facto parents.
In a January 2017 addendum report, SSA noted that J.K. had not been in contact with SSA since the end of November 2016. Additionally, J.K. had a 6 percent call in rate for his required daily calls to the drug testing facility, and he had missed all scheduled drug tests since mid-November 2016. J.K.'s failure to communicate with SSA and failure to attend mandatory drug tests continued into February 2017. Additionally, a girlfriend of J.K.'s advised SSA that J.K. had assaulted her in December 2016 when she was nine months pregnant with their child.
ADDITIONAL PROCEDURAL HISTORY
In January 2017, mother filed a second section 388 petition asking that the juvenile court vacate the dispositional order as to all four children: "The mother is requesting the four children be returned to her care and custody or in the alternative, the mother is requesting family reunification services for all four children." Mother contended the disposition order should be changed because she "has completed a 52 week child abuser program, individual counseling, parenting classes, a 730 evaluation and a 733 evaluation."
SSA's section 387 petition was set for a hearing. The de facto parents withdrew their section 388 petitions on the ground that the issues they raised had been subsumed by SSA's section 387 petition. The juvenile court then heard argument on mother's section 388 petitions. Without granting an evidentiary hearing, the juvenile court denied mother's first section 388 petition on the ground in was moot in light of the section 387 petition filed by SSA. As to the second section 388 petition, the court found mother had failed to make a prima facie showing of changed circumstances, and denied that petition as well.
DISCUSSION
I.
STANDARD OF REVIEW
Section 388 allows a parent or interested person to petition the juvenile court for a hearing to change, modify or set aside a previous order if the petitioner can establish (1) changed circumstances and (2) that the proposed order would be in the best interests of the child. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) In order to obtain an evidentiary hearing on the petition, the petitioner must make a prima facie showing of both prongs of the test. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) We apply the abuse of discretion standard in our review of the juvenile court's decision to deny the section 388 petitions without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
II.
SECTION 388 PETITION REQUESTING A NEW JURISDICTION AND DISPOSITION HEARING
With respect to the jurisdiction orders, mother's section 388 petition did not establish changed circumstances. The juvenile court's exercise of jurisdiction over all four children was based on the injuries sustained by J.B., which were caused nonaccidentally by mother, according to the findings of the juvenile court. Neither the lack of safety for E.J. and K.J. in C.J.'s house, nor C.J.'s arrest record, nor his drug use changed the circumstances underlying the court's exercise of jurisdiction. Mother contends that C.J.'s lack of candor with SSA and the juvenile court must cause the court to reevaluate the jurisdiction order. However, the court clearly stated that it did not rely on any testimony by C.J. when making the jurisdiction order.
As to the disposition orders for E.J. and K.J., mother made a prima facie showing of a change in circumstances. The home in which these children were going to be placed was neither safe nor sanitary. C.J. had failed to comply with his case plan, had failed to drug test, and had failed to tell the juvenile court or SSA about his arrest record.
The proposed orders requested by mother—that the court vacate the disposition orders and conduct a new disposition hearing—would not have been in the best interests of E.J. and K.J., however. At SSA's request, a protective custody warrant had already been issued before mother's petition was filed, meaning that the children would not be placed in C.J.'s care. SSA had also filed a supplemental petition to change the disposition orders for E.J. and K.J. Therefore, the change of order sought by mother's petition was identical to the change of order sought by SSA's petition (excepting the relief that was improperly sought by mother, discussed ante and post).
Mother argues on appeal that the use of her section 388 petition would be in the best interests of the children because the hearing would occur sooner, as compared with a hearing on SSA's supplemental petition under section 387. In support of this argument, mother cites California Rules of Court, rule 5.570(f), which provides that if a petitioner makes a prima facie showing of changed circumstances and good cause, the court must order a hearing on a section 388 petition within 30 calendar days after it is filed. This rule only applies to the hearing on the petition itself, not to any hearings necessitated by the modification of the court's order. Because the modification mother sought was a new evidentiary hearing on disposition, proceeding by means of mother's section 388 petition would not necessarily result in a change of the underlying disposition order any earlier than would by proceeding via SSA's section 387 petition.
As to the disposition orders for J.B. and A.B., mother's first section 388 petition did not make a prima facie showing of changed circumstances. That petition was based solely on C.J.'s alleged false testimony and current problematic living situation. J.B. and A.B. had not been placed with C.J., and nothing about the circumstances of their placement had changed at the time the first section 388 petition was filed.
III.
SECTION 388 PETITION REQUESTING PLACEMENT OR REUNIFICATION SERVICES
In denying the second section 388 petition, the juvenile court found that it was required to measure the change of circumstances since the disposition order had been entered, not since the inception of the dependency proceedings. Mother argues this was error, citing In re Kimberly F., supra, 56 Cal.App.4th 519. Mother's argument is incorrect. In In re Kimberly F., the court specified that in determining a child's best interests under section 388, the juvenile court must consider "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532, italics omitted.) While this test does look back to the inception of the dependency proceeding, it addresses only the best interests prong of the test; it does not apply to the changed circumstances prong. Indeed, the In re Kimberly F. court found it was "undeniable that [the mother] showed a . . . change of circumstance" (id. at p. 526), and the court therefore focused its analysis solely on the children's best interests. If we were to reach the best interests prong in the present case, we would be forced to conclude that the problem leading to dependency—the injury to J.B.—was serious, and has yet to be acknowledged by mother. Therefore, no matter how strong the bond between mother and the children versus the bond between the children and their caretakers, mother would not be able to show her proposed change was in the children's best interests.
Second, in a case similar to this one (in terms of the procedural elements of the section 388 petition), an appellate court specifically held that the change of circumstance is measured from the time the challenged order was entered. "In making her argument, mother points to the positive steps she alleged she had taken after her children were removed from her care. But even if these steps were found to be true at a hearing, they would not have established mother's right to reunification services. [Citation.] Some of the alleged steps—such as mother's willingness to engage in services—were already known when the juvenile court denied reunification services in May 2013 and accordingly could not have constituted changed circumstances." (In re G.B. (2014) 227 Cal.App.4th 1147, 1160.)
With one exception, the evidence mother offered to support her claim of changed circumstances was evidence of her actions before the disposition hearing and before reunification services were terminated. Furthermore, this evidence was before the juvenile court during the jurisdiction and disposition hearings, and therefore was taken into consideration by the court in its orders.
With respect to the letter from mother's therapist (the only new evidence), which postdates the disposition order, it alone is not sufficient to show changed, rather than changing, circumstances. Nothing in the therapist's letter shows mother has ever acknowledged, much less addressed, the primary issue that led to the dependency proceedings—J.B.'s injury, caused nonaccidentally by mother. Without that acknowledgement, the juvenile court could not find the circumstances that led to dependency had changed, much less that a change in the court's order would be in the children's best interests. Again, the appellate court's analysis in In re G.B., supra, 227 Cal.App.4th at page 1160, is instructive: "And the additional steps mother alleged—separating from father and belatedly undergoing a psychological evaluation—while commendable, were not enough to have allowed the juvenile court to have made the necessary findings that services were likely to prevent reabuse or were in the children's best interests. The evaluation report upon which mother herself relied stated that mother continued to deny any parental role in [the minor]'s serious injuries and was still '"a work in progress."' In light of this denial, mother's steps, even if proven, would not have rebutted the presumption against her receiving services. If mother had abused [the minor], she was not owning up to it. If she had not abused [the minor], she was not owning up to the role she played in allowing or ignoring father's abuse. Either way, the juvenile court would have been unable to make the necessary findings that services were likely to prevent reabuse or were in the children's best interests. Thus, the juvenile court did not abuse its discretion in declining to hold an evidentiary hearing on mother's first section 388 petition."
DISPOSITION
The order is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.