In re T.D.

In re T.D.

Filed 8/8/08 In re T.D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re T.D., a Person Coming Under the Juvenile Court Law.	B205237 (Los Angeles County Super. Ct. No. J962870)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County.

Marilyn Martinez, Judge. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens and Jacklyn K. Louie, Deputy County Counsel.

_

D.B. appeals from a trial court order denying her Welfare and Institutions Code[1]section 388 petition, in the dependency proceedings concerning her daughters S.[2]and T. We affirm, as we explain:

S. was detained in 1990, shortly after her birth, and T. was detained in 1997, when she was 11 months old. Both section 300 petitions were sustained on allegations concerning appellant's drug use. Appellant did not reunify with either child. (Reunification services were not even offered to her when T. was detained.

( 361.5, subd. (b).)) Both girls were ultimately placed with their maternal cousin, Gladys R., who also cared for other of appellant's children. S. was placed there in 1990 and T. in 2007. Gladys R. was named legal guardian for both girls, and in March of 2002, the court terminated jurisdiction, finding that the children were doing well and that support was available through the Kinship Guardianship Assistance Payment program.

Then, in 2003 and 2004, appellant completed drug, parenting, and other programs and began to visit her children and establish a relationship with them. In October of 2007, she filed a section 388 petition, seeking return of S. and T. to her care. As changed circumstances, she wrote that she had completed all required classes, had stable housing and employment, and had been a consistent part of the children's lives for the past four years and had bonded with them. She also wrote that Gladys R. had gotten older and had some physical problems.

Under the "best interest" prong, appellant wrote that the children would be able to develop a stronger relationship with her, and that she could provide steady discipline and guidance. Where the form asked "does anyone disagree with your request?" she wrote that Gladys R. agreed that it was time for the children to be with their mother.

The court denied the petition without a hearing, noting that there were no supporting documents concerning programs.

On December 6, appellant filed another section 388 petition, identical to the October petition but attaching a plethora of documentation concerning her completion of drug, parenting, and other programs.

A parent has a right to a hearing on a section 388 petition if the petition makes a prima facie showing that new evidence or changed circumstances exist and that the proposed change in order would promote the best interests of the child. ( 388; In re Marilyn H. (1993) 5 Cal.4th 295, 301.) Appellant's first contention on this appeal is that the December 6 petition made the requisite prima facie showing, and that the court erred when it refused to set a hearing. We need not dwell on any issue concerning a prima facie showing, because we conclude that the court did set a hearing.

These are the facts: Appellant's motion was made on the form JV-180, and the court made its orders on the notorious "court order" page of that form.[3] The court checked box 13 (". . . A hearing shall be held on the request as follows: . . .") then checked both the (a) option, which states that "The matter is set for a hearing," and the (b) option, which states "The judge will not hold a hearing. The judge will make a decision based on your request . . . You . . . may ask for a hearing, which the judge will hold if there is good cause." The (a) option includes blank spaces for the date, time, and department, all of which the court supplied, setting the hearing for January 14, 2008. In handwritten annotations to the form, the court appointed counsel for S. and T. and ordered DCFS to report.

Our record does not include any proof of service of the "court order" form, but it does include a "dear parent or guardian" letter, signed by the Clerk of the Court, dated December 19, 2007, which states that the petition was ordered set for hearing, supplies the date and time and department, and states "A copy of this letter is sent via U.S. Mail to the petitioner and Minor(s) attorney on this date."

Our record also includes a January 9, 2008 proof of service showing that appellant, the children, and Gladys R. were served with a notice of hearing on the petition.

We conclude that the court did find that appellant was entitled to a hearing, and set one. The selection of multiple options on form JV-180 confuses things somewhat, but the court's notice to appellant that a hearing had been set is persuasive.

The next question is whether appellant got a hearing, or got one which comported with due process. Again, the facts are complex.

When the case was called on the hearing date, the court said "We are here for a hearing on the children's mother's section 388 petition. There is notice, and I have considered the social worker's report."[4] The court then appointed counsel for appellant, who had filed her petitions in pro. per. It is apparent that she and counsel had already conferred.

The court invited appellant's counsel to begin. Counsel asked that the section 388 petition be granted and also told the court that appellant's son K. would like to make a statement. After counsel made additional arguments, the court sought the children's position, saying that the matter might have to be set for a contest.

Through counsel, the children asked that the motion be denied. Counsel argued "They want to remain in the place that has been their stability and where they've been virtually their entire lives. [] They both love their mother very much. They enjoy visiting with her. They visit with her frequently. . . So they want to maintain - stay in contact and love their mother. But they want to be able to remain in the place they call home . . . ."

The court indicated that it was inclined to deny the petition, and appellant's counsel asked "Would your honor want me to proceed today or set the matter for contest?"

The court answered, "Well, I'm not even sure I'm going to set the matter for contest, because now that I look through at the 388, I indicated the court will not hold a hearing. The judge will make a decision based on the request and any other papers filed."

Counsel then made additional arguments based on the petition, and also made various representations about the facts. For instance, counsel represented that appellant planned to provide for S. after her high school graduation, that Gladys R. was caring for additional people, and that appellant would facilitate contact between her daughters and Gladys R. Then, K. made a statement, which was that he too had lived with Gladys R. and that "I see my sisters following the same path I followed. They're on the same program that I was. They're able to do what they want to do when they want to do it. And that led me to prison." He said that his sisters were "slipping in their schoolwork," just as he had and that his mother provided him with guidance and stability.

The court questioned S., who said that she would graduate from high school in June and that she was talking to her counselor about community college. She hoped to be a pediatrician. The court then asked T. her career goal. She answered that her goal was singing.

Gladys R. was not present. She lived in Desert Hot Springs, and on January 8, she had told DCFS that she would not be able to attend the court hearing because her car could not reliably travel that distance. Appellant, who had the children for the weekend (the hearing was on a Monday) brought the children to the hearing.

The court denied the petition, finding first that appellant "turned her life around," a changed circumstance. The court then found that she loved her children and that S. and T. loved her, but that the evidence did not support a finding that the change in placement was in the girls' best interest, given that they were doing well with their aunt, in the home which had been their home for most of their lives.

Appellant's contention is that this proceeding did not constitute a hearing, or at least not a "full evidentiary hearing," without which she was denied due process. DCFS relies on In re C.J.W., supra, 157 Cal.App.4th 1075which, on similar facts, found that a hearing was held and that the hearing comported with due process, even though the court did not allow testimony from the parents. (Id. at pp. 1080-1081.)

We are loathe to characterize the proceeding here as a hearing when the court itself did not do so, but instead drew distinctions between a "hearing" and a "contest." Section 388 allows a court to deny a petition without a hearing, or grant one, and in our view, this at least suggests that a hearing on a section 388 petition is something more than oral argument.

However, appellant never objected to the proceedings as they actually took place, or asked the court to hold a full evidentiary hearing. She did not seek to call a witness, except that she asked that K. be allowed to make a statement, a request which the court granted. She did not ask that K. or S. or T. be sworn, or object to the court's consideration of the DCFS report. Instead, she made arguments based on the documents attached to the section 388 petition and on her statements in the petition and on her own counsel's representations about the evidence. Any objection to the lack of an evidentiary hearing was thus forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

Moreover, in order to foreclose other auxiliary claims (In re C.J.W., supra, 157 Cal.App.4th at p. 1081) we find that we cannot agree with appellant's claim that the lack of a full evidentiary hearing prejudiced her.

Appellant argues that an evidentiary hearing was required because DCFS (in its report) disputed her statement (in her petition) that Gladys agreed that it was time for the children to be with their mother. She contends that conflict should have been resolved, and could have been if the children had testified about where they wanted to live. We cannot see that testimony was required. Through counsel, the children informed the court that they did not wish to live with appellant, but wanted to stay where they were. Further, we agree with DCFS that there was no real or relevant conflict in Gladys's position. According to appellant, she thought that the children should be with appellant. According to DCFS, she had no problem with appellant, but wanted the children to decide for themselves. Those are consistent statements. Credibility was not an issue, and Gladys's testimony was not required. (See In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405.)

Appellant also cites the court's comment that "I do not have evidence to support that the girls are neglected or abused or not properly cared for," in Gladys R.'s home. She cites In re Michael D. (1996) 51 Cal.App.4th 1074, 1086 for the rule that a parent need not show that the children are being harmed in their current living situation, in order to prevail on a section 388 petition. That is so, but appellant was required to prove by a preponderance of the evidence that a change is in the children's best interest. (Id. at pp. 1083-1084.)

As we read the record, appellant and her counsel came to court ready to proceed on her section 388 petition, armed with all the evidence that they had. Yet, the only suggestion that the children would benefit from a change came from K.'s statement and from appellant's own statement that she would provide more discipline. Appellant provided no information about the children's grades, or indicated that they were ever in trouble at school, or gave any specific example about the lack of discipline in Gladys R.'s home. She does not now suggest that she had any such evidence. We cannot see evidence that a change was in the children's best interest.

Finally, appellant argues that she could have countered T.'s statement of her preference by pointing out that T. had only recently moved to Desert Hot Springs and that she would have to "start over" anyway, when she went to high school. These could not have been serious or determinative factors. T. was happy where she was, and although she loved her mother, she did not want to move. In the absence of any showing that a move would secure her best interests - that is, that she would be better off in some meaningful way if she did move - the petition would have been denied even if the evidence and arguments had been brought before the court.

Disposition

The order denying appellant's section 388 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1]All further statutory references are to that code.

[2]Shanta was 17 when the notice of appeal was filed but is now 18 years old. In her brief, appellant writes that due to Shanta's age, the brief will focus on Taneisha, but that "to the extent the issues are not moot, the same arguments are applied to Shanta as well." DCFS takes the inaccurate position that the section 388 petition only concerned Taneisha. We cannot see that, as a matter of law, this case is moot as to Shanta. It does not commonly happen, but dependency jurisdiction can extend until the dependent child is 21. ( 303, In re Holly H. (2002) 104 Cal.App.4th 1324, In re D.R. (2007) 155 Cal.App.4th 480, 486-487.)

[3]The "court order" portion of JV-180 has been called "internally inconsistent and ambiguous" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080) and "legally infirm." (In re Lesly G. (2008) 162 Cal.App.4th 904, 914.)

[4]DCFS reported that appellant's home, a two bedroom apartment, was adequately furnished, and clean. Appellant said that she had been employed for the last three years, and that since she changed her lifestyle she had built a relationship with her children. Gladys R. told DCFS that she did not want to argue with appellant about the children's placement, but would leave the decision up to the children. She said that both children were doing well in school, and that the last four years, appellant had maintained regular contact with the children, including weekend and holiday visits. Both children told DCFS that they liked their mother and had no concerns about her home, but did not want to live with her. Taneisha said "I do not want to have to restart. I like my friends and my school."