Opinion
H046763
10-17-2019
In re J.A., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 15JD023606)
On December 7, 2015, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (c) relative to a boy, J.A. (the minor), who was then four years old. R.A. (mother) and O.A. (father) are the minor's parents. (Mother and father are hereafter collectively referred to as parents.) The minor was placed into protective custody after father, with mother's permission, violated a restraining order by entering mother's home and taking the minor, thereby exposing the minor to risk of harm. The juvenile court declared the minor a dependent child. In January 2016, he was placed in the home of M.N., his paternal grandmother—now his legal guardian—where he has remained to this date. Parents were offered reunification services, and those services were terminated in June 2017. In January 2018, the juvenile court at the selection and implementation hearing pursuant to section 366.26 (366.26 hearing) ordered a permanent plan of legal guardianship of the minor with M.N., with mother to receive two hours of visitation twice per week supervised by a neutral third party and with mother bearing the cost of such supervision.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
In January 2019, mother filed a petition under section 388 requesting a change of the prior court order of January 2018; she sought a new order granting her custody of the minor, or, in the alternative, unsupervised visits and overnight visits. She filed an amended petition in March 2019 seeking the same relief. (Hereafter mother's petition and amended petition are sometimes collectively referred to as the 388 petition.) While the 388 petition was pending, and despite multiple requests, mother did not furnish the Department with her residence address so that the Department could evaluate the living environment. On March 15, 2019, after hearing argument, the juvenile court denied without prejudice an evidentiary hearing on mother's 388 petition, concluding that mother, through her petition, had not made a prima facie showing of changed circumstances warranting relief or that the proposed change of order was in the minor's best interests. Mother appealed, claiming the court erred.
We conclude that the juvenile court did not abuse its discretion in denying mother an evidentiary hearing on her 388 petition, and we will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
In presenting the facts and procedural history, we have reviewed and considered (1) the record on appeal here, and (2) the record in a prior appeal filed by mother (see In re J.A. (July 30, 2018, H045548) [dismissal order filed]). Additionally, there was a prior writ proceeding initiated by mother in which a record was filed but no petition was filed on behalf of mother (see R.A. v. Superior Court, case complete October 4, 2017, H044807). On July 19, 2019, this court granted the Department's request for judicial notice of the record filed in these two related proceedings; however, because the record in the writ proceeding was returned to the superior court after the case was complete, we are unable to consider it here.
A. Prior Proceedings
On December 7, 2015, the Department filed a petition under section 300, subdivisions (b) and (c) relative to the minor. The Department alleged that on December 3, 2015, the minor was placed into protective custody by the Milpitas Police after father violated a restraining order by entering mother's home and taking the minor. It was alleged that mother failed to protect the minor by permitting father to enter the home notwithstanding his propensity toward violence and the existing restraining order intended to protect the minor from father. The petition recited that there was a lengthy history of mutual domestic violence between mother and father. In the past (since 2009), father had, inter alia, attempted to alienate the minor from mother, stolen mother's vehicle and other property, harassed her at work, vandalized her apartment, installed video cameras in mother's home without her knowledge, and physically abused mother, which abuse resulted in her needing medical attention. Father was convicted of domestic battery in 2010 as a result of one incident. The Department alleged that mother had also, since 2009, perpetrated domestic violence upon father by harassing him at work, verbally and physically attacking him, and attempting to alienate the minor from him. Mother had also encouraged father to violate an active restraining order. And parents had "repeatedly exposed the [minor] to physical domestic violence and power control dynamics," thereby "plac[ing] the child at risk of serious physical harm and emotional damage."
The minor was ultimately placed in the care of M.N., his paternal grandmother, in January 2016. On April 22, 2016, the minor was declared a dependent of the court, and parents were offered family reunification services. Reunification services for parents were terminated in June 2017 at a combined 12-month and 18-month review hearing.
On January 18, 2018, the juvenile court conducted a contested 366.26 hearing. At the 366.26 hearing, the Department recommended approval of legal guardianship as the permanent plan for the minor and that mother receive professionally supervised visitation twice per week. The Department conceded that, because of the need for permanency, parental visitation of this frequency was not usually recommended where the permanent plan was for guardianship. But in light of mother's consistent and positive visitation with the minor since June 2017, and notwithstanding "[t]here certainly have been some issues," the Department believed that twice-a-week visitation was appropriate. The court found in its order that termination of parental rights would be detrimental to the minor because mother had maintained regular visitation and contact with him. The court therefore adopted the Department's recommendation, ordering that (1) legal guardianship by M.N. be the permanent plan; (2) mother receive visitation of a minimum of twice per week and two hours per visit; (3) mother's visits be professionally supervised by Choices for Children or another professional agency, with mother bearing the cost of such services; (4) mother "conduct herself peacefully and respectfully at all times in [the minor's] presence, towards [M.N.], and with visitation support staff"; and (5) father receive visitation of a minimum of once per month, two hours per visit.
On January 19, 2018, letters of guardianship were filed, appointing M.N. as the minor's legal guardian.
B. Mother's 388 Petition
1. The Petition
On January 17, 2019, mother, as a self-represented litigant, filed a 388 petition, requesting that the court modify its January 18, 2018 order after the 366.26 hearing. Mother alleged that M.N. was "violating the orders and exposing [the minor] to his father . . . who has no parental rights." Mother alleged further in the 388 petition that she had regularly visited her son, the visits had been positive, she had a stable job and home, and she posed no risk to the minor. She requested a new order granting her custody of the minor, or, in the alternative, unsupervised visits and overnight visits.
On March 8, 2019, mother, now represented by counsel, filed an amended 388 petition, also requesting that the court modify its January 18, 2018 order. In the amended petition, mother requested a new order dissolving M.N.'s guardianship and granting mother custody of the minor, or, in the alternative, a modified order permitting mother "more liberal visitation, including unsupervised and overnight visits." Mother alleged that since January 2018, mother had "made significant and positive changes in her life," including her having obtained stable housing and work as a lab assistant, and having "developed a strong local support system." She had remained clean and sober—having received a negative test on February 4—and was compliant in taking her prescribed psychotropic medication. Mother alleged that there had been no new incidents of domestic violence as she had maintained no contact with father.
Mother alleged further in the amended petition that she had consistently visited the minor and that the visits had gone well. But she stated "the minimum visitation order [was] not being followed" because of the limited availability of supervisors at the facility she had selected, and because financial restraints prevented her from using alternative visitation centers. Mother alleged that "recent tension between [M.N.] and [mother] ha[d] caused undue confusion and stress on the child. It is in the child's best interest to be returned to [mother's] care now that she is stable and in a position to have [the minor] in her care full time."
2. Department's Report on Mother's Petition
In a report signed February 14, 2019 (filed on March 15), the Department filed a lengthy report addressing mother's 388 petition. The Department summarized the history of the proceedings through the termination of the dependency. It noted by way of background that there had been 20 child welfare referrals involving mother, the minor, and mother's older child (the minor's half-sibling). These referrals included reports of physical abuse of both children and domestic violence between mother and father.
The substance and frequency of these referrals prior to the minor's detention on December 3, 2015, none of which apparently resulted in further action being taken by the Department, are of great concern to this court. They include (1) a January 2012 referral involving reports that mother had verbally abused the minor (11 months old) on a daily basis—making statements in his presence such as " 'I don't want this fucking baby,' " " 'There is no law to make me love this baby,' " and " 'Shut up, you're a monster' "—on occasion had shaken him when he had refused to sit in his car seat, and had in the past driven while intoxicated with the minor as a passenger; (2) a May 2012 referral in which it was alleged that the minor had a bruise on his cheek, was taken to the hospital by M.N. because he was having difficulty breathing, mother thereafter refused medical treatment for the minor after a telephone request from hospital staff, and mother later appeared at the hospital "demonstrating 'erratic' behavior," requiring that staff contact law enforcement; (3) an April 2014 referral made in Contra Costa County alleging that "mother had punched the half-sibling . . . in the head with a closed fist" and the referent "had witnessed the mother slapping and hitting the half-sibling on other occasions"; (4) an August 2014 referral made in Contra Costa County in which it was alleged that (a) mother, who was diagnosed as bipolar, was not taking her prescribed medication, "had fits of rage" and she "told [the minor], age 3, that she was going to kill herself," and (b) the minor had said that mother "puts ice on his head when she hits him"; (5) March 2015 referrals made in Contra Costa County and Santa Clara County in which it was alleged that after mother dropped off the minor for a visit with father, "he was observed to have a bruise and scabbing on his upper right ear and purple fingernails on his left hand," the minor reporting that mother had hit him with a hammer (referrals evaluated out because neither the minor nor the half-sibling showed visible marks or bruises); (6) an April 2015 referral in which it was alleged that the referent had placed a tape recorder in the couch of mother's home, and the audio files demonstrated that mother had choked the minor; (7) a July 2015 referral made in Contra Costa County involving domestic violence where the children were not present in which father alleged that mother had pointed pepper spray at him, he had called the police, mother had threatened to kill herself, and she had ultimately been placed on a psychiatric hold; (8) a November 13, 2015 referral in which it was alleged that (a) family members had observed "father grabbing [the minor], age 4, by the neck and spanking him," resulting in the minor showing redness on his neck, (b) father on November 9 had grabbed the minor from mother, which resulted in the minor nearly falling to the ground, and (c) father had taken the minor to a friend's house and used methamphetamine while he left the minor unattended; and (9) a November 30, 2015 cross-report from the San Jose Police Department following a November 9 incident in which mother had allegedly assaulted father in the head with a closed fist and without provocation, had attempted to grab the minor who nearly fell to the ground, and had then fled the scene.
a. Interview of Mother
Department Social Worker Alexandra Fillmore interviewed mother on February 4, 2019. Mother advised Fillmore that she had filed the 388 petition because she wanted custody of the minor, stating that "she [had] 'promised' him that she would 'always keep trying' to ensure that he returned to her care." Mother complained that the paternal grandmother, M.N., had not been cooperative in facilitating mother's supervised visitation with the minor, stating that on occasion, M.N. would " 'no call, no show.' " Mother claimed that "most recently, [M.N.] has made the excuse that visitation is 'inconvenient' because of [the minor's] participation in a math program." Mother acknowledged that the professional service supervising the visits, Choices for Children, had offered to provide mediation to mother and M.N. concerning visitation issues, but mother had stated that "she does not believe that this would be helpful because [M.N.] 'intimidates people and gets what she wants.' " Mother stated that she could not recall the last time she had spoken with M.N., and that their relationship was "strained . . . because [M.N.] blames [mother] for the father going to jail and 'driving him to do drugs.' "
Mother told Fillmore that she did not believe the minor was happy under M.N.'s care. In response to how she anticipated caring for the minor if custody were changed, mother "stated that she would need support from her friends and community." Mother advised Fillmore that she was living in a one-bedroom apartment with a roommate, with mother occupying the living room, but she was in the process of obtaining her own housing. Mother was working as a part-time laboratory assistant but hoped to return to school to study respiratory therapy. She told Fillmore that "she ha[d] learned to be patient[,] . . . her life is quiet now and she has a 'great support system' of local friends who have welcomed her into their families."
Mother acknowledged to Fillmore that she had "a diagnosis of Bipolar II and PTSD [Posttraumatic Stress Disorder]" and has been prescribed Seroquel and Lamictal. She ceased psychiatric services soon after January 18, 2018, and had not participated in any mental health treatment programs for the past year. Mother told Fillmore that she was not currently attending 12-Step or codependency meetings, stating, " 'I do my own thing.' " Mother indicated further that she treated her mental health by " 'stay[ing] active and not dwell[ing] on things.' "
Mother told Fillmore that she was fearful that if she disclosed her current residence address, that information would be discovered by M.N. and father. She declined to provide the address to the Department during her February 4, 2019 interview with Fillmore. On February 8, after being informed by Fillmore that her address would be kept confidential and that the Department needed to visit mother's home to assess it and respond to her 388 petition, mother again declined to provide her address, stating that she would first like to consult with her attorney. On February 12, Fillmore made a third request to mother for her address. As of February 14, mother had not supplied the Department with her address.
b. Interview of Guardian (M.N.)
Fillmore interviewed M.N. at her home on February 5, 2019. M.N. said that the minor had lived with her for three years, and that he was "appropriately attached to her." M.N. told Fillmore that she owns her own home, has adequate transportation, and works full time as a project coordinator. Because of the recent passing of the minor's uncle with whom the minor was close, and his sadness as a result, M.N. was looking for referral for individual therapy for the minor and was attempting to reduce her work hours so that she could pick up the minor earlier from school.
M.N. advised Fillmore that she had the minor transferred "from his previous school because he was being bullied" and the issue was not being properly addressed. M.N. reported that the minor was "thriving in his new school environment." The minor was attending a math enrichment program (for which M.N. pays) four days a week. M.N. also enrolled the minor in an after-school program of five-weeks' duration (February 14 to March 21) that would temporarily conflict with mother's scheduled visitation on Thursdays. M.N. expressed a willingness to take the minor to visit mother for a full hour on Thursday after the program ended, but the professional supervision organization, Choices for Children, could not accommodate the visit. M.N. placed the minor on a waiting list for Friday afternoon visitation at Choices for Children.
M.N. stated that she believed mother had filed the petition because of a perception that M.N. was trying to prevent mother from spending time with the minor. M.N. denied mother's assertion that M.N. had cancelled visits. M.N. told Fillmore that she used vacation time every week to accommodate the minor's visitation with mother. M.N. "stated that she would not feel comfortable supervising visits between [the minor] and his mother without support due to the mother's aggressive approach during their interactions in the past."
M.N. advised Fillmore that after M.N. informed the minor "that a social worker would be meeting with him soon and asking questions about his mother[,] . . . he became 'frightened.' . . . [W]ithout prompting, he immediately informed [M.N.] that he did not want to leave her home and return to his mother's care." In a conversation with Fillmore two days later, M.N. stated that the minor was at the time " 'stressed out and waking up at night.' . . . [M.N.] stated that [the minor] is 'so scared' knowing that there [was] a possibility that he [would] return to the care of his mother."
c. Interview of the Minor
Fillmore interviewed the minor at his school. He said "that he likes 'a lot of stuff' about living with his grandmother because she plays with him." He stated that he felt safe living with her. The minor said he would be celebrating his birthday soon—turning eight years old—and that mother was not invited to the celebration. Responding to why this was the case, the minor said, " 'I like my grandmother better than my mom—she's mental,' " clarifying that " '[s]he doesn't like people.' " Fillmore asked what the minor liked about mother. The minor "paused and sighed. He stated, 'Can we get back to this question?' "
After the minor was questioned about his relationship with father, Fillmore returned to the question of what he liked about mother. The minor responded, " 'Not that much.' He stated, 'She's violent; she used to hit me.' He reported that his mother hit him with her hands and it made him feel scared." He told Fillmore, without being prompted, " 'Grandma never did that.' "
The minor told Fillmore that he thought "the frequency of his visitation with his mother [was] 'good how it is.' " He said the visits were fun and that he liked the visit supervisor. In response to the question of whether he looked forward to the visits, the minor "stated that he often [did] not have time to feel anything because he [was] rushed when he [went] to visits. He said that he [could not] be late for visits because the mother might use this information against him and [M.N.]." The minor stated to Fillmore that he was not scared because the visits were supervised. But he disclosed "that it would be scary if he visited with his mother without a social worker watching because he believe[d] that his mother want[ed] to 'take him away.' "
d. Department's Recommendation
The Department's recommendation was that the visitation order in place should remain unchanged and that mother's 388 petition be denied. Under that order, mother was entitled to a minimum of two visits per week for two hours each visit, with visitation supervised by a third party at mother's expense. The Department noted that mother had opted to visit the minor once a week for one hour because free supervision services of one hour per week were available through Choices for Children. Due to a conflict created by the five-week after-school course the minor was taking, the visits had been temporarily shortened to 30 minutes.
The Department advised that mother had expressed that in the one year since the dependency case was dismissed, she had learned new coping skills and had reduced the stress in her life. But Fillmore stated that mother had not "demonstrate[d] that she ha[d] completed additional classes or programs to address the issues that initially led to the [minor's] removal[, and] . . . still maintain[ed] some belief that her inability to successfully reunify with [the minor] was a result of the Department's disregard of her progress." The Department expressed concern that, while mother was taking her psychotropic medications, she was not under a psychiatrist's care and had not participated in individual therapy since the termination of services. And the Department stated that mother's failure to permit her residence to be assessed was a further hindrance to its ability to make a thorough assessment.
Further, the minor had been in M.N.'s care for three years, during which "time he ha[d] learned coping skills to address his anxiety, frustration, and grief. His confidence ha[d] increased and he ha[d] improved at making friends." Fillmore expressed concern that the minor "appear[ed] to be experiencing an increase in symptoms of anxiety surrounding the discussion of reunifying with his mother," including physical symptoms such as "present[ing] as stressed," loss of sleep, and having toileting accidents.
3. Hearing on Mother's 388 Petition
The juvenile court ordered a hearing for March 15, 2019, on whether mother had made a prima facie showing in her 388 petition to grant an evidentiary hearing. After the court heard argument on the matter from counsel representing mother, the Department, the minor, and the guardian, it denied without prejudice mother's 388 petition. The court, in denying an evidentiary hearing on the 388 petition, concluded that mother had failed to make a prima facie showing of changed circumstances or that the requested relief was in the minor's best interests.
The reporter's transcript reflects that the court stated in its ruling that "[t]his is not [sic] without prejudice to bring[ing] another [petition] again." In the context of the court's comments, and because the minute order reflects the ruling was without prejudice, we conclude that the "not" in the transcript was either an error in transcription or reflecting that the court misspoke.
Mother filed a timely notice of appeal from the order denying the 388 petition.
II. DISCUSSION
A. Section 388 Petitions to Change Orders
At any time after the court has determined a child to be a dependent of the juvenile court, "[a]ny parent or other person having an interest in a child" may by verified petition request the court to change, modify or set aside a previous juvenile court order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1).) A petition under section 388 is appropriate to seek a change of a prior guardianship order and to change custody to have a child returned to the parent. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1086-1087.) Likewise, a 388 petition may be brought to seek a change to a prior visitation order. (See In re J.T. (2014) 228 Cal.App.4th 953, 965.)
If the court determines from the petition that "it appears that the best interests of the child . . . may be promoted by the proposed change of order," it shall schedule a hearing on the matter. (§ 388, subd. (d).) A parent seeking modification of a prior court order pursuant to a section 388 petition must "make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) "There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; see also Cal. Rules of Court, rule 5.570(d)(1) [petition may be denied ex parte if petitioner "fails to state a change of circumstance or new evidence" or "fails to show that the requested modification would promote the best interest of the child"].) The petition is liberally construed in favor of its sufficiency. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see also rule 5.570(a).) But to satisfy the requirement that petitioner make a prima facie showing to justify a hearing, "the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) And the court may consider the entire factual and procedural history of the proceedings in making its determination of whether there has been a prima facie showing. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) Therefore, if the petition's allegations, liberally construed, do not show changed circumstances under which the child's interests would be promoted by changing a prior order, the court need not order a hearing on the section 388 petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Such summary denial does not violate the due process rights of the petitioner. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.)
All further rule references are to the California Rules of Court.
A determination on whether to change an order by granting a 388 petition "is 'committed to the sound discretion of the juvenile court, and [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.] An abuse of discretion occurs when the juvenile court has exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642, quoting and citing In re Stephanie M. (1994) 7 Cal.4th 295, 318.) This abuse of discretion standard also applies where the court denies a 388 petition without an evidentiary hearing. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158.)
B. No Abuse of Discretion in Denial of Mother's 388 Petition
In her opening brief, mother contends that the juvenile court abused its discretion by denying her 388 petition without an evidentiary hearing. She argues that "the petition alleged both new evidence and/or changed circumstances which impacted the effectiveness of the original visitation order, including evidence the child was being harmed by the reduced visitation, and evidence paternal family bias was undermining the mother-child bond."
In denying mother an evidentiary hearing, the juvenile court concluded that she had failed to make a sufficient showing in her 388 petition for two reasons: (1) failure to make a prima facie showing of changed circumstances; and (2) failure to show the requested relief was in the minor's best interests.
First, in concluding mother had failed to meet her burden of making a prima facie showing of changed circumstances, the juvenile court concluded that mother's having recently had a negative drug test, where substance abuse had not been an issue in the dependency proceedings, was "neither here nor there." Mother on appeal does not argue that this negative drug test was a changed circumstance. The court further held that mother's currently having housing and a job were not changed circumstances, since she had housing and a job when the dependency was terminated. Mother does not argue on appeal that these were changed circumstances. And the court found that the fact that mother was compliant with her prescribed medications was not a changed circumstance. Mother does not refute this conclusion on appeal.
Mother seemingly admits the correctness of the juvenile court's conclusion that her sobriety, housing, employment and compliance with prescribed medicines were not changed circumstances. In her opening brief, she states: "The mother's ongoing stability in employment, housing, her sobriety, medication compliance, and her compliance with court orders were significant, if not as changed circumstances, as part of the petition's overall presentation of the mother as a responsible, reliable woman who could be trusted with more liberalized visitation and/or custody of her son."
Mother, on appeal, raises other matters that she contends were changed circumstances and/or new evidence that compelled the court to schedule an evidentiary hearing. Mother argues in her opening brief that "[h]er inability to afford paid visitation was both new evidence and a changed circumstance." Mother did not make this argument below. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) The assertion of theories on appeal that were not presented at the trial level is improper. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686 (Kevin R.).) Mother has forfeited her claim that her claimed inability to pay for supervised visitation represented both a changed circumstance and new evidence. (Ibid.)
Even were we to consider this forfeited argument, however, we would reject it. The amended petition provided no specifics regarding any financial inability of mother to pay for supervised visitation. She alleged only that "visits have been limited to one time per week due to financial constraints," and "[d]ue to financial limitations, [mother] is not able to afford alternative visitation centers, which cost approximately $150 per week." These conclusory allegations are insufficient to present a prima facie showing of a changed circumstance or new evidence. (In re Alayah J., supra, 9 Cal.App.5th at p. 478.) "If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Further, mother contends on appeal that the amended petition presented new evidence that the paternal family (M.N. and father) were taking action that negatively impacted the minor's relationship with mother. Mother asserts that this conduct included M.N. saying negative things about mother to the minor that (mother believes) had resulted in his telling Fillmore that he was afraid that mother would take him away if there were no social worker supervising the visits. Mother also asserts that "father also spoke disparagingly of the mother." These assertions that actions by M.N. and father had alienated the minor toward mother and otherwise negatively impacted their relationship constituted new evidence supporting the 388 petition were not raised below and were thus not considered by the court. The contention is also forfeited. (Kevin R., supra, 191 Cal.App.4th at p. 686.)
Mother also contends on appeal that "[t]he changed circumstances were the drastic reduction in visitation and the child's negative reaction to the reduced visitation, possibly aggravated by the paternal relatives['] alienating the child against his mother." As to the latter part of this statement, the argument that the possible alienation of the minor by paternal relatives was a changed circumstance was not raised below and is forfeited. (Kevin R., supra, 191 Cal.App.4th at p. 686.) The contention that reduction in visitation constituted a changed circumstance, viewing the amended petition liberally, was made by mother below. She alleged in the amended petition that "the minimum visitation order is not being followed. [Mother] is consistent with visitation and the visits have consistently gone well. . . . However, because [mother's] visitation is currently ordered to be professionally supervised, visits have been limited to one time per week due to financial constraints, as well as visitation center availability." This allegation suggests that mother was constrained to use Choices for Children for professional visitation. The order after the 366.26 hearing of January 2018, however, contained no such requirement. Instead, it provided that mother's "[v]isits shall be supervised by a provider at Choices for Children or another professional agency from the attached list with the mother to bear the cost of the supervision expenses." Although we appreciate that mother chose for financial reasons to schedule visits through Choices for Children for one hour per week to avail herself of the free supervision services offered, this fact did not constitute a changed circumstance supporting the 388 petition.
Second—aside from finding that mother had not made a prima facie showing of changed circumstances—the juvenile court also denied an evidentiary hearing because it concluded that mother had not alleged sufficient facts that a change of order was in the minor's best interests. It stated that the allegations in the 388 petition were "pretty conclusory." In mother's original petition, in the section of the form dealing with the reasons a change of order would "be better for the child," she alleged that the minor told her "there [was] yelling and he [was] being bullied by his uncle . . . who resides with him. I can provide my son a safe and peaceful environment." In the amended petition, mother alleged that a change of order would "be better for the child" because: "The recent tension between [M.N.] and [mother] has caused undue confusion and stress on the child. It is in the child's best interest to be returned to [mother's] care now that she is stable and in a position to have [the minor] in her care full time. Short of return, it is in [the minor's] best interest for visitation to be liberalized so that he can maintain, and further develop, his relationship with his mother." The juvenile court did not err in concluding that these "general, conclusory allegations" were insufficient to warrant the granting of an evidentiary hearing on mother's 388 petition. (In re Edward H., supra, 43 Cal.App.4th at p. 593.)
M.N. told the Department that the minor and his uncle had been " 'very close,' " and M.N. denied that the uncle had bullied, belittled, or yelled at the minor in the home. The minor's paternal uncle passed away January 19, 2019, two days after mother filed her original petition.
The juvenile court concluded that no evidentiary hearing on mother's 388 petition was required because mother had failed to make a prima facie showing of the existence of changed circumstances under which the child's interests would be promoted by changing a prior order. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) In denying an evidentiary hearing, the court also impliedly found that mother had not made a prima facie showing in her 388 petition of new evidence. The record before us demonstrates that the juvenile court did not abuse its discretion in reaching these conclusions. (In re G.B., supra, 227 Cal.App.4th at p. 1158.)
III. DISPOSITION
The order of March 15, 2019, denying without prejudice mother's petition under Welfare and Institutions Code section 388, is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.