Opinion
E074215
06-16-2020
In re L.A., Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.G., Defendant and Appellant.
Law Offices of Vincent W. David & Associates and Vincent W. Davis for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Outside Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J282068) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Law Offices of Vincent W. David & Associates and Vincent W. Davis for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Outside Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
M.G., the paternal grandmother (PGM), appeals from the denial of her Welfare and Institutions Code section 388 petition to modify the juvenile court's orders denying her visitation as to her six-year-old granddaughter, L.A. On appeal, PGM argues the juvenile court erred in summarily denying her section 388 petition without a hearing in violation her due process rights. We conclude the juvenile court did not err and affirm the order denying PGM's section 388 petition.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
On June 28, 2019, the family came to the attention of the San Bernardino County Children and Family Services (CFS) when a 10-day referral was received alleging sexual abuse and general neglect of then five-year-old L.A. It was reported the maternal aunt had walked in on L.A. and L.A.'s three-year-old male maternal cousin, C.D., while L.A. had her legs spread open telling C.D. to touch and kiss her private area. It was also reported that L.A. had court-ordered overnight visits with PGM and that PGM did not properly supervise L.A. when the child was at PGM's home. It was further reported that there was a prior substantiated sexual abuse referral against the paternal grandfather, E.A., involving L.A. on August 6, 2018, and that L.A. had disclosed to her mother, A.A. (Mother), that the paternal grandfather was around L.A. when L.A. was in the care of PGM. Following an investigation, L.A. was detained from Mother's care pending the jurisdictional/dispositional hearing.
On July 2, 2019, Mother reported that she had asked L.A. where she had learned the behavior. L.A. stated she saw a video on YouTube of adults kissing on Mother's cell phone. Mother also noted that she was concerned for L.A.'s behavior due to L.A. stating she had been around the paternal grandfather. Since the incident, Mother had not allowed L.A. to use the cell phone or go to PGM's home. Mother further reported that L.A.'s father was deceased and PGM had court-ordered overnight visitation with L.A. through the Los Angeles County Superior Court.
L.A. confirmed the allegations and reported asking C.D. to "kiss her in her private parts." When the social worker asked L.A. where she learned the behaviors, she reported watching a video on YouTube. L.A. denied any recent sexual abuse since the last substantiated referral against the paternal grandfather. The maternal aunt stated that after she walked in on the children, she separated the children and questioned L.A. and C.D. about the incident. C.D. reported L.A. had "asked him to kiss her breast, butt, hair and vagina" and that "this was the first time this has happened." The maternal aunt also stated that L.A.'s father had been molested by the paternal great-grandfather and believed the paternal family had a history of molestation. The maternal grandmother also expressed concerns for L.A. being around the paternal grandfather and believed the familial molestation was generational.
On July 23, 2019, the social worker spoke with PGM. Initially, PGM denied that the paternal grandfather had been around L.A. PGM then reported that the paternal grandfather had been around L.A. but that he was never alone with L.A. PGM also stated that she was always present with L.A. and that she did not leave the child alone with the paternal grandfather. PGM further reported that the paternal grandfather had obtained documentation from the West Covina Superior Court stating he was able to be around L.A. and that Mother was aware of the paternal grandfather being around L.A. PGM stated that she was confused due to law enforcement not pressing charges. The social worker informed PGM that CFS had found the allegations of sexual abuse against the paternal grandfather to be true on August 6, 2018. PGM also stated that Mother was now bringing up these allegations because she would not let Mother borrow money and that Mother had no problems with the paternal grandfather seeing L.A. previously. The social worker told PGM that it was inappropriate for the paternal grandfather to have access to L.A. based on the substantiated allegations of sexual abuse.
The social worker was provided a copy of the "Certificate of Clerk: Name Search Results" by PGM. This document did not state the paternal grandfather was allowed to be around L.A.
A detective informed the social worker that criminal charges were not filed against the paternal grandfather due to L.A. not disclosing enough information during her forensic interview to reach criminal filing standards.
PGM did not initially believe the sexual abuse allegations against the paternal grandfather in July 2018.
On July 25, 2019, PGM called the social worker and stated that Mother was aware of a document indicating no charges were filed against the paternal grandfather. PGM also asserted that Mother had no problems with the paternal grandfather seeing L.A. after she was given the document. The social worker reiterated to PGM that the allegations of sexual abuse were found to be true in the last investigation and that the family was informed by CFS that the paternal grandfather should not have access to L.A. The paternal uncle corroborated the statements made by PGM.
The social worker thereafter called Mother to discuss the statements made by PGM and the paternal uncle. Mother stated that the paternal uncle had told her about the document from the West Covina Superior Court as the paternal grandfather was walking to PGM's house and L.A. had asked to see the paternal grandfather. Mother did not want to "'make a scene'" or frighten L.A. so she felt that she could not say anything. Mother further stated she knew she should have said something to the paternal family after recently speaking to the Chino Police Department. Mother also reported that around May 2019 L.A. had informed her that she saw the paternal grandfather "'all the time.'" Mother provided a picture of the paternal grandfather with L.A. and her female paternal cousins to the social worker. Mother noted that she had not allowed the paternal grandfather to see L.A. since the current referral.
On August 15, 2019, a petition was filed on behalf of L.A. pursuant to section 300, subdivision (b) (failure to protect). The petition alleged that L.A. was sexually abused by the paternal grandfather around May 2018 and that Mother knew or reasonably should have known L.A. was having visits with the paternal grandfather and failed to appropriately protect L.A.
The detention hearing was held on August 16, 2019. In relevant part, the juvenile court ordered L.A. to remain with Mother and for CFS to provide services to Mother and L.A. pending the case plan. The court also ordered that L.A. have no contact with PGM or the paternal grandfather.
Prior to the jurisdictional/dispositional hearing, the social worker reported that Mother and PGM were aware of the paternal grandfather's sexual abuse of L.A. and that they were both informed by CFS it was their responsibility to protect L.A. from further contact and abuse. Despite this, CFS was concerned that PGM was allowing L.A. to have continued contact with the paternal grandfather. There were also concerns that Mother was aware of the contact and/or had suspicion that it was occurring but did not take steps to ensure L.A. was not around the paternal grandfather.
The social worker noted that Mother had been cooperative with CFS and had previously protected L.A. when the sexual abuse came to light. The social worker believed Mother required services to address the trauma and sexual abuse to L.A. and to become more aware of how to recognize the signs of sexual abuse and how to be more protective of L.A. The social worker recommended that the allegations in the petition be found true and that L.A. remain in Mother's care under a family maintenance plan.
The jurisdictional/dispositional hearing was held on September 13, 2019. The juvenile court found the allegations in the petition true as amended and declared L.A. a dependent of the court. The court ordered L.A. to remain in Mother's custody under family maintenance services. The court also ordered "All prior orders not in conflict remain in full force and effect."
On October 2, 2019, PGM filed a section 388 petition requesting the juvenile court modify its prior visitation order and documents to support her petition. Specifically, PGM requested enforcement of the visitation order issued in the Los Angeles Superior Family Court on January 3, 2019. Alternatively, PGM wanted a modification of the visitation order issued by the juvenile court and L.A. placed in her care. She claimed the change in order was in L.A.'s best interest because L.A. was bonded to PGM and her relatives and L.A. would benefit from having contact with PGM.
On October 2, 2019, PGM also filed a de facto parent request. On this same day, PGM filed a motion for a relative placement assessment and a hearing pursuant to section 361.3
On October 7, 2019, the juvenile court summarily denied PGM's section 388 petition, finding the proposed change of order did "not promote the best interest of the child." The court also found that "[g]randmother has no right to visits based on this court's orders and not in child's best interest. Grandmother's actions led to the dependency in part." On this same day, the juvenile court denied PGM's request for de facto parent, finding "child is with mother." The court also denied PGM's motion for relative placement, noting L.A. was in the care of her mother.
On November 21, 2019, PGM timely filed a notice of appeal.
III
DISCUSSION
PGM argues the juvenile court erred in summarily denying her section 388 petition and violated her due process rights because her petition with supporting attachments showed a prima facie case for changed circumstances and best interest of the child. We disagree.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806).) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (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 . . . ."].) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) Contrary to PGM's claim, we review the juvenile court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
PGM contends the juvenile court should have held a hearing on her section 388 petition because she established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the child. In support, she argues that she provided the court with the January 3, 2018 judgment on grandparent rights awarding visitation with L.A. She also asserts the proposed change was in L.A.'s best interest because she provided L.A. with day-to-day care on alternative weekends, she engaged in memorable cultural activities with L.A., the child grew up visiting her and other paternal relatives every other weekend, and L.A. shared a bond with her beyond that of a grandmother and granddaughter. Because she had established a prima facie case of changed circumstances and best interest of the child, PGM therefore believes the court's denial of a hearing violated her due process rights.
Initially, we note noncustodial grandparents of dependents of the juvenile court have "no substantive due process right to free association with the minors, or to maintain a relationship with them. The rights of grandparents to assert control over their grandchildren are restricted by state juvenile jurisdiction to determine and protect the best interests of dependent minors." (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1508.) PGM's status as a nonparty, however, did not place her outside the reach of the juvenile court with respect to orders concerning L.A. (Ibid.) The court's no contact order is essentially an order that the paternal grandparents do not have a right to visitation, which is clearly within the purview of the court. (See § 361.2, subd. (i) ["[i]f the court has ordered removal of the child from the physical custody of the child's parents pursuant to Section 361, the court shall consider whether the family ties and best interest of the child will be served by granting visitation rights to the child's grandparents"]; see In re Marriage of Harris (2004) 34 Cal.4th 210, 219 ["[g]randparents' rights to court-ordered visitation with their grandchildren are purely statutory"].) Furthermore, in this case, L.A. was not removed from her mother's care, and therefore the court was not required to provide PGM with visitation. (See § 361.2, subd. (i).) Accordingly, PGM did not have a right to a hearing on her petition.
Moreover, PGM's reliance on the family law court's visitation order as evidence of changed circumstances is misplaced. Section 304 makes clear that "[w]hile the child is under the jurisdiction of the juvenile court all issues regarding his or her custody shall be heard by the juvenile court." (§ 304.) Section 304 "gives juvenile courts exclusive jurisdiction over minors who are their dependents, and expressly precludes family courts and probate courts from issuing orders regarding the custody or guardianship of such minors. The obvious intent of this provision is to eliminate the possibility that different courts claiming jurisdiction over the minor could issue inconsistent orders regarding the minor's custody." (A.H. v. Superior Court (2013) 219 Cal.App.4th 1379, 1390.) The juvenile court's jurisdiction is paramount to the family law court's jurisdiction even when the juvenile court acquires jurisdiction later in time. (In re William T. (1985) 172 Cal.App.3d 790, 797.)
Even if PGM had shown changed circumstances, PGM failed to make a prima facie showing that granting the section 388 petition and providing her with visitation was in the best interest of the child. Here, in denying the section 388 petition, the juvenile court correctly noted PGM's conduct was in part the basis for the dependency. Despite a substantiated allegation of sexual abuse by the paternal grandfather and CFS informing PGM that she should not allow the paternal grandfather to be around L.A., the record indicates PGM allowed the paternal grandfather continued access to L.A. Indeed, PGM admitted that the paternal grandfather had been around L.A. following the substantiated sexual abuse allegations in August 2018 but attempted to explain and minimize her actions.
There was nothing in the section 388 petition demonstrating that it was in L.A.'s best interest to have visitation with PGM. Rather, L.A.'s safety and well-being was the juvenile court's foremost concern, outweighing any interest in visitation with PGM. The prospect of allowing PGM continued contact with L.A. in the hopes she would not allow the paternal grandfather access to L.A. would not have promoted the child's best interest. (See In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) The juvenile court reasonably concluded that, under the circumstances of this case and in light of PGM's actions, PGM had not made a prima facie showing of changed circumstances or that allowing PGM visitation with L.A. would be in her best interest. (Id. at p. 464.)
In Angel B., supra, 97 Cal.App.4th 454, a case relied upon by PGM to support her position a hearing was required in this case, the court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.)
The mother in Angel B. did not make such a showing. Nor does PGM here. PGM made no factual showing that allowing her visitation with L.A. would promote the child's best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348, 1349 ["allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing"].)
We conclude PGM has not made a prima facie showing that L.A.'s best interest would be served by allowing her visitation with PGM. The juvenile court therefore did not abuse its discretion in summarily denying PGM's section 388 petition without a hearing.
PGM contends the juvenile court's summary denial of her section 388 petition constituted a denial of due process. She argues that because she stated a prima facie case in support of her petition, her due process rights were violated.
Section 388 gives the court discretion in deciding whether to provide a hearing on a petition alleging changed circumstances, because there are safeguards to prevent arbitrariness in denying such hearings. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) As discussed, PGM's petition did not set forth a prima facie showing of the elements required to trigger a hearing. Because the juvenile court did not abuse its discretion under section 388, PGM's due process rights were not violated.
IV
DISPOSITION
The juvenile court's order summarily denying PGM's section 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
. J. We concur: MILLER
Acting P. J. FIELDS
J.