In re Annie
S.
Filed 7/2/12 In re Annie S.
CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
In re ANNIE S., et al., Persons Coming
Under the Juvenile Court Law.
B235000
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent.
v.
SONNY S., et al.,
Defendants
and Appellants.
Super. Ct. No. CK65262)
APPEAL from orders of the Superior Court of
County. Donna Levin,
Juvenile Court Referee. Affirmed.
Ernesto Paz Rey, under appointment
by the Court of Appeal, for Defendant and Appellant Sonny S.
Kimberly A. Knill, under appointment
by the Court of Appeal, for Defendant and Appellant Marguerite M.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
Appellant
Marguerite M. (mother) is the mother of Chloe (born August 1993), Bryanna (born
May 1999), Annie (born February 2003), and Christopher (born November
2006). Appellant Sonny S. (Sonny)
Christopher. Mother appeals the denial
of her petition, under Welfare and Institutions Code section 388,
children to her custody, or in the alternative, an additional six months of
petition seeking return of Annie and Christopher to his custody, or
alternatively, for an additional six months of family reunification
services. Both parents contend the
juvenile court erred by denying their respective petitions without first
conducting an evidentiary hearing.
We hold that the
juvenile court did not abuse its discretion by summarily denying mother and
Sonny’s respective section 388 petitions without an
orders.
BACKGROUND
1. Initial detention and section 300 petitions
On August 25, 2006, the Department of Children and
Family Services (the Department) received a referral alleging physical
abuse of Bryanna by mother and general neglect of Chloe and Annie. A social worker investigating these
allegations found the family home to be filthy and in disrepair. Bryanna told the social worker that mother
hit her with a broomstick, a dustpan, shoes, and her hand.
Mother, Sonny, Chloe,
and several maternal relatives attended a team decision meeting held on October 3, 2006. At the meeting, Chloe
confirmed that mother hits Bryanna with a broom, shoe, or belt, and that mother
used to hit Chloe as well. Maternal
relatives said that mother had told them in the past that she hits Bryanna with
a belt. Sonny admitted knowing that
mother hits Bryanna with objects, but said she does not hit her hard.
By the time of the
October 3, 2006 team decision meeting, mother had not yet cleaned the
home. She said it was Chloe’s and
Bryanna’s responsibility to clean the house, and if they did not do so, mother
could not because she was pregnant.
On October 6, 2006,
the Department filed a petition on behalf of Chloe, Bryanna, and Annie under
section 300, subdivisions (a) [inflicting physical harm], (b) [neglect and
failure to protect], and (j) [sibling abuse].
At the detention hearing held
on that same date, the juvenile court found father to be Annie’s presumed
father; Timothy G.
name="_ftnref3" title="">[3] to be Chloe’s alleged father;
and D.J., deceased, to be Bryanna’s alleged father. The court ordered all three children detained
and granted both mother and Sonny monitored visitation.
In November 2006, the
Department reported that the children were placed together with a maternal
relative. Chloe told the social worker
that mother would hit Bryanna with anything she could get her hands on and that
bruises would appear on Bryanna’s body the following day. Chloe said that mother abused her in a
similar way when Chloe was Bryanna’s age, and that she no longer wanted to live
with mother.
Mother’s cousin, M.M.,
told the social worker that she had witnessed mother hit Bryanna with her fist. M.M. had observed bruises on Bryanna’s body
on other occasions. When questioned
about the bruises, Bryanna said that mother had hit her with a shoe.
Mother admitted
hitting Bryanna with a broom and with her hand but did not recall using other
objects to discipline the child. She did
not believe the discipline was excessive or caused Bryanna unreasonable
Mother gave birth to
Christopher in November 2006. The
juvenile court ordered Christopher detained in foster care, and the Department
filed a petition on Christopher’s behalf under section 300, subdivisions (a),
(b), and (j).
2. Jurisdiction/disposition of section 300
petitions
At the adjudication
hearing on the petition for Chloe, Bryanna, and Annie, mother signed a waiver
of rights, and the juvenile court sustained an amended petition under section
300, subdivisions (a), (b), and (j). The
court ordered mother to participate in individual counseling, conjoint
counseling with the children, parenting classes, and an anger management
program. The court ordered Sonny to
participate in parenting classes and conjoint counseling. Both parents were accorded family
reunification services.
Mother also signed a
waiver of rights at the adjudication
hearing on Christopher’s petition, and the juvenile court sustained an
amended petition under section 300, subdivisions (b) and (j).
3. Review proceedings and home of parent order
In January 2007, the
Department reported that mother had enrolled in parenting classes and an anger
management program. Mother and Sonny
were also participating in counseling, but their therapist reported that the
couple had made minimal progress and were difficult to work with. Mother and Sonny discharged themselves from
their programs in late January 2007 but re-enrolled three months later.
In March 2007, Annie’s
caregiver reported that Annie had engaged in sexualized conduct with the
caregiver’s grandson. Annie told the
caregiver that Sonny behaved that way with mother, but not with her. The caregiver also reported that Bryanna had
disclosed that mother and Sonny have sex in front of the children.
In response to these
disclosures, the social worker interviewed the children, mother, and
Sonny. Chloe said that she had walked in
on mother and Sonny having sex in the living room on one occasion only. Bryanna said she had seen mother and Sonny
having sex on the couch at night when she came out of her room. Although mother and Sonny initially denied
ever having sex in front of the children, Sonny subsequently admitted that
Bryanna may have seen them having sex by walking in on them, but they had been
fully covered at the time.
In May 2007,
Christopher’s caregiver reported that mother and Sonny had been inconsistent
with their visits. The parents had
failed to attend three visits and had not called to cancel or reschedule. The parents’ therapist reported that both
mother and Sonny were enthusiastic participants. Their parenting instructor reported that
mother and Sonny had completed six of the twelve required sessions and was
making good progress. At the six-month
review hearing held in May 2007, the juvenile court ordered continued family
reunification services for both parents and set the matter for a 12-month
review hearing.
In September 2007,
mother’s and Sonny’s therapist reported that both parents continued to
participate in individual counseling.
They demonstrated eagerness to enhance their parenting skills, accepted
constructive analysis, and followed recommendations and suggestions. Mother and Sonny completed their parenting
classes in October 2007. Their
instructor reported that both had been willing and cooperative participants.
At the 12-month review
hearing held on November 7, 2007, the juvenile court granted mother and Sonny
unmonitored day visits with the children and gave the Department discretion to
liberalize the visits to include overnight visits.
Mother and Sonny
visited regularly with the children in November and December 2007, and Chloe,
Bryanna, and Annie each reported enjoying the visits. The parents’ visits became inconsistent by
late December and early January, however, when mother and Sonny cancelled four
out of seven visits. For the visits they
did not cancel, Sonny and mother arrived late.
At the January 22,
2008 hearing, the juvenile court accorded both parents continued family
reunification services and ordered the Department to prepare a report
addressing Christopher’s possible return to his parents.
Mother and Sonny began
having overnight visits with Christopher in March 2008. The visits went well, and Christopher began
calling Sonny “Dada.†Chloe, Bryanna,
and Annie were also having overnight weekend visits. The social worker found the parents’ home to
be clean and stocked with food, and the children appeared well cared for. The Department recommended that the children
be returned to mother’s and Sonny’s custody.
On March 27, 2008, the juvenile court ordered all four children returned
to the parents and family maintenance services to be provided.
4. Proceedings following home of parent order
In April 2008, the
Department reported that the family appeared to be adjusting well to
reunification. Chloe and Bryanna said they
enjoyed spending time with the family, and Christopher appeared to be
progressing in his development.
In September 2008, the
Department reported that Chloe, Bryanna, and Anna had not attended counseling
since March 2008, and Chloe and Bryanna were no longer enrolled in school. The Department was unable to contact the
family. Sonny’s job had required him to
move to Las Vegas, but mother and the children continued to reside somewhere in
Los Angeles. Neither parent appeared at
the September 2008 status review hearing, and the juvenile court continued the
matter to October.
By October 1, 2008,
the Department located the family residing in a hotel. Sonny explained that the family had been
traveling back and forth between Los Angeles and Las Vegas. While in Los Angeles, the family’s Las Vegas
home was burglarized and most of their possessions were stolen. Chloe and Bryanna were still not enrolled in
school. The juvenile court ordered
continued family maintenance services and scheduled a review hearing for the
following month.
In November 2008, the
family was still residing in a hotel.
Chloe and Bryanna were enrolled in school but had missed several
days. The parents explained that Annie
was not enrolled in school because they felt her behavior was “too severe†and
that she was exhibiting symptoms of being bipolar. The Department expressed concern that the
family’s frequent moves were disrupting the children’s education. The juvenile court ordered a full
psychological evaluation for Annie and ordered the Department to provide family
preservation services.
In February 2009, the
Department reported that the family had been moving from motel to motel and its
current whereabouts were unknown. Annie
and Bryanna were enrolled in school, but had numerous unexcused absences. Chloe was not enrolled in school. Family preservation services had been
terminated because mother cancelled the assessment appointment. Mother had also cancelled Annie’s appointment
for a psychological evaluation. The
juvenile court ordered the Department to investigate Chloe’s whereabouts,
whether she was enrolled in school, and what her wishes were regarding
placement.
In May 2009, the
Department reported that the family had secured a two-bedroom apartment in
Torrance. Chloe was re-enrolled in high
school but was failing most of her classes.
Annie was seeing a therapist, who recommended in-home wraparound
services for Annie and the family.
Christopher was receiving Regional Center services three times a week.
In August 2009, the Department
received a referral regarding sexual abuse of Annie. Annie disclosed that she had been sexually
abused while living with her former caregiver.
She reported that the caregiver’s boyfriend had touched her genitals on
more than one occasion. Later that same
month, the Department received a second referral stating that Annie had seen
Bryanna touch Christopher’s genitals.
Mother explained that Christopher had difficulty urinating, that his
penis needed to be stimulated in order to urinate, and that she had instructed
Bryanna on how to do so. The social
worker informed mother that this was not an appropriate task for Bryanna.
In June 2009, the
Department reported that the children’s school reports showed they had missed
more than 30 days of school since October 2008.
Chloe was in the tenth grade and was failing all of her classes. Bryanna, who was in the fourth grade, and
Annie, who was in kindergarten, were both being considered for retention
because they were not meeting grade expectations and had numerous unexcused
absences. The juvenile court ordered
continued family maintenance services and set the matter for a September review
hearing.
In September 2009, the
Department reported that the family had moved to a different two-bedroom
apartment in San Pedro. Sonny had left
the family and said he would no longer provide for them financially. Mother and the children were receiving crisis
intervention services, wraparound services, psychiatric evaluation and
treatment, and case management services.
The juvenile court ordered the Department to prepare a report addressing
its investigation of Annie’s sexual abuse allegation, services being offered to
the family, and mother’s ability to handle the children on her own.
In October 2009, the
Department reported that the family had again moved to a new apartment in
Torrance. Sonny was once more living in
the family home. Allegations of general
neglect and emotional abuse of Annie by her former caregiver had been
substantiated, but the sexual abuse allegations were inconclusive. Bryanna had been hospitalized for two days
because of dizziness and a heart condition.
The juvenile court
ordered continued family maintenance and wraparound services and ordered the
Department to assist mother in applying for Social Security income benefits, to
assist the parents in obtaining Regional Center services for Christopher and
medical services for Bryanna, and to have the children evaluated for individual
education programs.
5. Second detention and section 342 petition
In December 2009, the
Department detained the children after Chloe told the social worker she did not
want to remain in the home. She reported
that on the night of November 23, 2009, Sonny and mother had gone out and left
Chloe in charge of her younger siblings.
While the parents were gone, Christopher followed Bryanna outside the
apartment when she went to do the wash in a downstairs laundry room. The parents returned home, found Christopher
outside, and became verbally abusive to Chloe and Bryanna. Chloe said Sonny is often verbally abusive
toward her, calling her “nigger†and “bastard.â€
She also said that Sonny frequently leaves his marijuana paraphernalia
in the living room. Chloe further
disclosed that she has often had to miss school in order to care for her
younger siblings because mother does not get out of bed in the morning and
sleeps a lot during the day.
Bryanna told the social worker that she, too,
did not want to remain in the home because Sonny and mother were verbally
abusive toward her. Bryanna and Chloe
both said the parents often go out to eat at night and do not bring food home
for the children.
The Department filed a section 342 petition
alleging that the children came within the jurisdiction of the court under
section 300, subdivisions (b) [failure to protect] and (c) [serious emotional
damage]. The juvenile court ordered the
children detained and accorded mother and Sonny family reunification
services. The court further ordered
counseling for Chloe, Bryanna, and Annie, and Regional Center services for
Christopher. Chloe and Bryanna were
placed together with a maternal cousin, and Annie and Christopher were placed
in separate non-relative foster homes.
Mother was accorded monitored visits with all the children. Sonny was accorded monitored visits with
Annie and Christopher only, and no visits with Bryanna and Chloe. Both parents were ordered to submit to weekly
and on-demand drug testing.
In its January 11, 2010
jurisdiction/disposition report, the Department summarized its interviews with
the children and the parents. Chloe
described Sonny’s marijuana pipe in detail and said she had seen it in the
living room on multiple occasions. She
said that Sonny called her a “Compton nigger†and that he called Bryanna a
“bitch.†Bryanna also described Sonny’s
marijuana pipe and said that both Sonny and mother often swore at her and
called her derogatory names.
When the social worker asked six-year-old
Annie if she knew what drugs were, the child responded, “You go to the drug
store to buy weed.†She said that her
parents smoked “weed†“a little bit†and that it smelled like “fire.â€
Mother and Sonny both admitted that Sonny
regularly smoked marijuana, but claimed he had a prescription authorizing his
use. Mother initially denied using
drugs, but then admitted doing so on the night the children were detained. In the month of December, mother failed to
appear for one drug test, had one negative test, and one positive test for
alcohol. Sonny failed to appear for one
drug test and had one positive test for marijuana.
Mother and Sonny had one visit with
Christopher and two visits with Annie in late December 2009 and early January
2010. They also spoke to Annie by
telephone on a daily basis. Mother had
one visit with Chloe and Bryanna at a McDonald’s restaurant. Sonny had transported mother to the visit,
and although he remained in his truck during the visit, Chloe and Bryanna
reported that his presence made them uncomfortable.
The Department filed a
first amended petition on March 9, 2010, adding allegations that the children
were at risk of harm because mother and Sonny left Chloe to supervise her
younger siblings and Christopher had wandered out of the home; the parents
failed to ensure Annie’s regular attendance at school; and mother had a history
of mental problems, including a major depressive disorder, that periodically
rendered her incapable of providing the children with regular care and
supervision.
In a March 2010
interim review report, the Department noted that mother had moved out of her
apartment and into her father’s home.
Sonny was living in the South Bay but declined to provide his residence
address. Mother had one positive test
for alcohol on January 26, 2010. The
testing center explained that the positive test could have been caused by
mother’s diabetes. Sonny tested positive
for marijuana on January 4, 15, and 20, 2010.
Both parents were visiting weekly with Christopher and Annie. Chloe and Bryanna said they did not wish to
visit with mother.
In May 2010, the Department
reported that mother had received psychiatric treatment in 2002 for “major
depression with psychotic features.†Her
symptoms included suicidal ideation and hearing voices. Mother had received four months of therapy
for her condition, but the therapy sessions were terminated after she missed
several sessions.
Mother failed to
appear for drug testing on March 3, 17, 26, 29, and April 16, 2010. Sonny tested positive for marijuana on
February 5, 26, March 20, 26, April 16, and 20, 2010. He had produced a medical marijuana
prescription issued on February 19, 2010, renewable at the end of a three-month
period.
Mother and Sonny
continued to have weekly monitored visits with Annie and Christopher, who
appeared to enjoy the visits. Although
Christopher did not appear to be upset when the visits ended, Annie would cry
at the end of the visits. Mother also
began visiting with Bryanna, who said she enjoyed the visits.
At the May 13, 2010
adjudication hearing, the juvenile court sustained the amended section 342
petition and terminated its previous home of parent order. The court ordered mother to undergo an
Evidence Code section 730 evaluation, to complete all recommendations made by
the 730 evaluator, to enroll in individual counseling, and to participate in
conjoint counseling with Chloe, Bryanna, and Annie. The court ordered Sonny to enroll in
6. Post-342 petition review proceedings
Mother’s Evidence Code
section 730 evaluator Dr. Michael Yoo reported that mother’s current behavior
was consistent with her previous diagnosis of depression and associated
psychotic thought disorder. Dr. Yoo
stated that during her evaluation, mother expressed odd beliefs, demonstrated
suspiciousness bordering on paranoia, and reported some unusual perceptual
experiences. Dr. Yoo recommended that
mother meet regularly with a psychiatrist, receive medications deemed necessary
by her treating doctor, and receive regular and consistent psychotherapy for
treatment of her disordered personality traits.
He recommended dialectical
behavioral therapy, or if that was unavailable, cognitive behavioral
therapy in its stead. Dr. Yoo also recommended
that mother participate in regular random drug testing.
The juvenile court
ordered mother to meet regularly with a psychiatrist, to participate in regular
and consistent psychotherapy, and to submit to eight consecutive weekly drug
tests.
In September 2010,
mother was living with a friend and Sonny was living with his mother, but the
two of them were considering moving in with each other again. Sonny was participating in counseling and
attending drug and alcohol education classes, but continued to miss drug
tests. On July 29, 2010, he tested
positive for opiates.
Sonny and mother
visited inconsistently with Annie and Christopher, cancelling approximately
half of their scheduled visits between June and September 2010. Annie and Christopher were doing well in
their respective placements. Between May
6, 2010 and July 29, 2010, mother missed five of twelve scheduled visits with
Bryanna and was late for two visits.
Bryanna subsequently refused to visit with mother. Chloe continued to refuse visits with mother.
7. Termination of family reunification services
The
Department reported in December 2010 that Sonny had completed a course in
alcohol and substance abuse and had submitted three negative drug test
results. Mother had missed one drug test. The Department further reported that mother
had met with her psychiatrist, Dr. Ramirez, for an intake appointment and had
participated in two therapy sessions.
Dr. Ramirez opined that although mother presented with depressive
symptoms, they were not severe enough to warrant medication. She referred mother for dialectical
behavioral therapy but did not know if mother was receiving the therapy.
The juvenile court
accorded the Department discretion to allow mother and Sonny unmonitored
visitation with Annie and ordered that efforts be made to place Annie and
Christopher together.
In February 2011 the
Department reported that mother and Sonny had visited consistently with Annie
and Christopher. Mother had not yet
started individual counseling and said she was on a waiting list.
Chloe and Bryanna
continued to do well in their placement with M.M. Chloe was scheduled to begin classes at Santa
Monica City College. She told the social
worker she had worked hard to achieve what she had accomplished so far, and
that if she returned to mother, she would never earn her high school
diploma. Bryanna said she did not
believe any of the children should be returned to mother and Sonny, because the
parents had not changed.
Mother and Sonny were
present at the contested section 366.22 hearing held on February 23, 2011. Alexa Brady, the Department’s social worker,
testified that mother was meeting with a psychiatrist and was on a waiting list
to receive dialectical behavioral therapy but had not been able to participate
in that therapy. Ms. Brady further
testified that mother had admitted that she did not currently have a stable
residence.
Ms. Brady acknowledged
that Sonny had completed drug and alcohol education classes and had submitted
clean drug tests for a six-month period.
She nevertheless expressed the opinion that Sonny’s period of sobriety
was relatively short.
Brooke Holman, a
foster family agency social worker who monitored Christopher’s and Annie’s
visits with their parents, testified on mother’s behalf. Ms. Holman testified that Annie and
Christopher both looked forward to visits with their parents and were very
excited to see them. The children were
affectionate with the parents, and Annie cried when the visits concluded.
At the conclusion of
the hearing, the juvenile court found that family reunification services should
be terminated as to Chloe and Bryanna.
With regard to Annie and Christopher, the court found that the parents
had been in the juvenile dependency system for several years but had only
recently become serious about their programs and visitation. The court concluded the parents had run out
of time, terminated family reunification services, and set the matter for a
section 366.26 selection and implementation hearing.
In March 2011, Annie’s
caregiver expressed a desire to become her legal guardian. The caregiver noted that Annie had been
placed with her since December 2009 and that Annie’s behavior, mental health,
and grades had greatly improved during that period.
8. Section 388 petitions
In June 2011, both
mother and Sonny filed separate section 388 petitions requesting modification
of the juvenile court’s order terminating reunification services. Mother’s petition sought return of all four
children, or in the alternative, an additional six months of family
reunification services. Sonny’s petition
sought return of Annie and Christopher to his custody, or alternatively, six
more months of family reunification services.
Mother’s petition
alleged as changed circumstances her continued therapy with Dr. Ramirez,
appropriate living arrangements, and the strong bond she shared with Annie and
Christopher. Sonny’s petition stated
that he had completed a drug counseling program, had consistently visited with
the children for six months and obtained appropriate living arrangements for
them, and that the children were strongly bonded to him.
The juvenile court
summarily denied both mother’s and Sonny’s section 388 petitions, finding that
neither parent had established changed circumstances. At the July 13, 2011 section 366.26 hearing,
the juvenile court appointed Annie’s and Christopher’s caregivers to be the
children’s respective legal guardians.
The court granted Sonny and mother visitation with Annie and Christopher
two times per month and gave the legal guardians discretion to liberalize the
parents’ visits so long as it furthered the children’s best interests. The court then terminated jurisdiction over
Annie and Christopher.
With regard to Chloe,
the juvenile court found that she was nearly 18 years old, and ordered that she
remain permanently placed with Monica until she turned 18 and became
emancipated. The court continued the
matter as to Bryanna, whose prospective legal guardians were awaiting approval.
This appeal followed.
DISCUSSION
I. Section 388 petitions
Mother and Sonny both contend the
juvenile court erred by denying them an evidentiary
improperly denied his petition because the court mistakenly believed his
request for reinstatement of reunification services was the subject of an
appeal.
To
obtain an evidentiary hearing
the petitioner must plead facts sufficient for a prima facie showing that (1)
the circumstances have changed since the prior juvenile court order, and (2)
the proposed modification will be in the best interests of the child. (In re
Marilyn H. (1993) 5 Cal.4th 295, 310: In
re Daijah T. (2000) 83 Cal.App.4th 666, 672.) In determining whether the petition has made
a prima facie showing that modification of the prior order is in the child's
best interests, it is important to consider the stage of the dependency
proceedings. “After the termination of reunification services, the parents’
interest in the care, custody and companionship of the child are no longer
paramount. Rather, at this point, ‘the
focus shifts to the needs of the child for permanency and stability’
[citation], and in fact, there is a rebuttable presumption that continued
foster care is in the best interests of the child. [Citation.]â€
(In re Stephanie M. (1994) 7
Cal.4th 295, 317.) We cannot reverse a
summary denial of an evidentiary hearing on a
388 petition unless the ruling constituted an abuse of discretion, i.e., it was
arbitrary, capricious, or beyond the bounds of reason. (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
If no prima facie evidence exists there is no due process requirement to
hold a hearing. (See
1407, 1416.)
II. No abuse of discretion
Mother failed to make a prima facie
showing of changed circumstances. She
provided no evidence to support her claims that she had continued in therapy
with Dr. Ramirez, did not qualify for dialectical behavioral therapy, and had
procured appropriate living arrangements for the children. Mother’s petition stated no facts, and
proffered no evidence as to whether she had participated in a
was not an abuse of discretion.
Sonny similarly failed to
demonstrate changed circumstances. His
marijuana use was one of the problems that led to the children’s second
detention. Sonny’s continued use of
marijuana in the six months following the children’s removal from his custody
prompted the juvenile court to order him to participate in a drug counseling
and testing program. His completion of a
drug counseling program two months before the hearing at which his
reunification services were terminated and five months of negative drug tests
demonstrated changing, rather than changed circumstances.
The record does not support Sonny’s
contention that the juvenile court based its denial of his petition solely on
the mistaken belief that his request for reunification services was the subject
of a then pending appeal. Although the
juvenile court appears to have mistakenly believed Sonny had appealed the
termination of his reunification services, the court also found that Sonny’s
petition failed to state new evidence or changed circumstances. The following exchange between the juvenile
court and the parents’ counsel took place at the section 388 hearing:
“THE COURT: [T]here is an
appeal pending on the same issues and I don’t have any new information. So I am going to deny --
“[MOTHER’S COUNSEL]: There
is an appeal pending on 388?
“THE COURT: No, there is an
appeal pending on the termination of reunification.
“[MOTHER’S COUNSEL]: So the
court is not going to proceed with legal guardianship?
“THE COURT: No, no.
no. That isn’t what I am saying. I am saying I am going to deny the 388’s
since both 388’s are asking for family reunification services to be reinstated
and that is the issue on appeal.
“[FATHER’S COUNSEL]: Well,
Your Honor, the fact that it is on appeal doesn’t mean that it is not something
that also could be considered --
“THE COURT: And the request
does not state new evidence or change of circumstances.
“[FATHER’S COUNSEL]: I
think the father’s states new evidence and change of circumstances.
“[MOTHER’S COUNSEL]: As
well as mother’s Your Honor. I don’t
know if the court read it.
“THE COURT: That is the
court’s finding.â€
The
juvenile court found that both parents’ petitions failed to establish changed
circumstances and on that basis could have concluded that a hearing was not
necessary on the petitions. As this
conclusion does not exceed the bounds of reason, we find no abuse of discretion
in the juvenile court’s denial of the section 388 petitions.
DISPOSITION
The
juvenile court’s order denying the petitions under section 388 is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
DOI TODD
name="_ftn1" title="">[1] We refer to Sonny by his name because he is the father of
some, but not all of the subject children.
name="_ftn2" title="">[2] All further statutory references are to the Welfare and
Institutions Code.
