In re K.C.
Filed 7/17/12 In re K.C. CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT
In re K.C. et al., Persons
Coming Under the Juvenile Court Law.
B238338
(Los Angeles
County
Super. Ct.
No. CK 55700)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.H.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court for the County
of Los
Angeles. Terry T.
Truong, Juvenile Court Referee.
Affirmed.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Kimberly Roura,
Associate County Counsel, for Plaintiff and Respondent.
__________________________________
The issue in this case is whether
the juvenile court erred in denying a mother’s Welfare and Institutions Code
section 388 petition without a hearing.
The petition asked the court to change a previous order so that
mother could have sleepover visits from her children one weekend each month and
participate in school and after-school activities. We find no abuse of discretion and so affirm
the juvenile court’s order.
The juvenile court took
jurisdiction over mother’s four children in 2004, shortly after the youngest
was born with methamphetamines in her system.
Since then, mother, R.H., has been in and out of various
very well but then reverting to her previous habits, and has been incarcerated
at times. After the children—the newborn
and siblings who were two, three, and four years old—were detained, mother
failed to reunite with them, and on August 9, 2006, the court ordered a permanent
plan of legal guardianship with their maternal great-aunt. The aunt requested legal guardianship,
thinking that the children were still bonded to their mother, “and that in the
future, adoption could be detrimental to the well being of the children.” The court ordered “monitored visitation every
other Saturday from 1 PM to 5 PM, once [mother] is released from
prison.” Jurisdiction was terminated.
Seven months or so later, in March
2007, mother filed the first of several section 388 petitions, asking the
court for changes in the visitation order.
Section 388 permits a parent, “upon grounds of change of circumstance or
new evidence,” to petition the court for a hearing to change or set aside any
previous order of the court. (§ 388,
subd. (a).) “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 . . . .”
(§ 388, subd. (d).)
Mother’s March 2007 petition asked
the juvenile court to order “unsupervised visits/weekends” with her
children. Mother had been in prison for
eight and a half months, but was on parole and had been transferred to a
residential substance abuse program in February 2007. Mother appeared to the Department of Children
and Family Services to be “committed to recovery” and “worthy of unsupervised
visits” if the visiting atmosphere was safe.
The Department recommended that the legal guardian, with whom the
children were well bonded and who appeared to have their best interests at
heart, “have the discretion regarding the parents’
visitation . . . .”
But, on May 17, 2007,
mother withdrew her section 388 petition, so no order was made on mother’s
petition and jurisdiction remained terminated.
Almost two years later, in March
2009, mother filed a second section 388 petition. She was in prison at the time, serving a
three-year term and due for parole in November 2009. Her petition stated, erroneously, that in
April 2007, the juvenile court had ordered unsupervised visits every weekend. Mother asked the court to order the legal guardian
(or a social worker or her father) to bring the children to visit her in
prison, and “also for the guardian to keep in contact letting me know how
the[y’re] doing in school and at home.”
The court ordered a hearing, at which the children’s counsel reported on
her conversations with the guardian and the children, stating, “I don’t find in
any way, shape or form whatsoever that [the legal guardian] is trying to not
allow these kids to have contact with their mother.” The court denied mother’s petition, ruling
the legal guardian “has the discretion to make the determination whether the
children should be transported to the prison to visit with the mother.”
Almost two more years passed, and
on April 21, 2011, mother
filed her third section 388 petition.
She again erroneously stated that the court had granted her unsupervised
visits every other weekend, and asked for an order that “the girls sleep over
one weekend every month and the boys another weekend,” and “also to participate
in school and after school activities when possible.”
As new information for the judge,
mother described the court’s denial of her previous petition, leaving visits to
her in prison to the legal guardian’s discretion, and added, “Guardian feels
that my visits every other weekend were also taken.” Mother included a highly laudatory two-page,
unsigned letter dated April 11, 2011,
from the residential substance abuse facility where she had just completed
treatment. The letter reported that
mother had called her children more than 90 times since she had been at the
facility (since January 20, 2011),
but actually spoke with them only eight times.
The letter writer called the legal guardian, who “made it clear that she
would not allow the children to visit [mother] nor would she allow [mother] to
visit them when she was given a weekend pass.”
The letter further indicated that mother’s brother, M.G., was a
registered sex offender, listed on the Megan’s Law website, and he had been
residing at the legal guardian’s house where all four children reside. The letter indicated that mother had made
numerous calls to various agencies, including the Department, the Probation
Department and the Children’s Court, and mother’s therapist had also tried “to
have this situation immediately addressed.”
According to the letter, mother spoke to her brother’s probation officer
on February 15, 2011, and the officer stated that he would take immediate
action. The letter concluded that “[t]o
our knowledge,” M.G. still resided at the legal guardian’s home. Mother’s petition also included her own
handwritten letter with similar information, also stating that the legal
guardian was not abiding by the court order and “I do not get my visits, [and]
when I call to speak to the children I always get the run around.”
The juvenile court denied the
petition without a hearing on May 23, 2011, finding that the petition did not
state new evidence or a change of circumstances, and that “Program letter is
not signed. Also, [mother’s] letter is
illegible.” Mother took no appeal from
the order.
Another five months passed, and on
October 18, 2011, mother filed a fourth section 388 petition, the one at issue
on this appeal. Again she erroneously
referred to an April 2007 order for unsupervised visits every other weekend. As new information, mother stated that she
was “attending treatment program with intensive counseling,” that her brother,
a registered sex offender, was living with the legal guardian and “because
mother complained about this, legal guardian is refusing to allow mother to
visit with the children.” She requested
the same change as in her previous petition:
separate sleepovers for her sons and daughters one weekend a month, and
her (mother’s) participation in school and after-school activities. These changes would be better for the
children because they “have a close relationship with mother and mother
believes that her counseling has provided her with better communication skills
and mother no longer poses a risk to the children.” Mother attached to her petition the same
unsigned April 11, 2011 letter from the facility where she had completed
treatment in April, and the same handwritten letter she had included with the
petition she had filed six months earlier.
The juvenile court again denied
mother’s petition without a hearing, finding the request did not state new
evidence or a change of circumstances, and the proposed change of order “does
not promote the best interest of the child.”
This time, mother filed a timely
appeal.
Mother contends the juvenile court
should have held a hearing on her claims that she “was prepared for significant
visitation with her children,” but the legal guardian was denying her
visitation and was permitting a registered sex offender to live in the home
with the children. According to mother,
failure to hold a hearing “was an abuse of [the court’s] discretion and an
abdication of its role as a protector of the children of this state.” While mother’s claim that a registered sex
offender lives in the home with the children naturally gives one pause, on this
record we can find no abuse of the court’s discretion.
The law under section 388 is
clear. A juvenile court order may be
changed or set aside “if the petitioner establishes by a
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.” (In re Zachary G., at p. 806.)
We review the court’s order denying a hearing for abuse of
discretion. (Id. at p. 808.)
Mother’s “proposed change of order”
(§ 388, subd. (d)) simply asks the court for a change in visitation to allow
weekend sleepovers and for the right to participate in school and after-school
activities. The juvenile court concluded
mother’s proposed change of order “does not promote the best interest of the
child.” We cannot say that conclusion
was “ ‘ “ ‘arbitrary, capricious, or patently
absurd . . . .’ ” ’ ” (In re
Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.) Nothing in the petition supports the notion
that the changes mother proposed would promote the best interests of the
children. All mother has done is to
state her belief that the changes she requested would be better for the
children because they “have a close relationship with mother,” who now has
“better communication skills and . . . no longer poses a risk to the children.”
These conclusory allegations do not
suffice. (See In re Ramone R. (2005) 132
Cal.App.4th 1339, 1348 [“allegations of her [section 388] petition were to be
liberally construed, but conclusory claims are insufficient to require a hearing. Specific descriptions of the evidence
constituting changed circumstances is required.”].) The children, who have been living with
mother’s aunt for more than seven years, did not see their mother at all while
she was in prison, and her claim of a close relationship is belied by the
statement in her April 2011 handwritten letter that she felt that “the
relationship with myself and my children is fading away and [I] would like the
chance to build back our relationship and to be able to bond with them.” While this is a commendable goal, we cannot
fault the juvenile court’s conclusion that the change requested—overnight
weekend visits—would do nothing to promote the best interests of the children,
who have now been living with their great-aunt for most (and in one case all)
of their lives.
As for the claim that mother’s
brother, a sex offender, is living in the house with the children, that
circumstance, while literally “new evidence,” is entirely unrelated to the
relief mother is seeking. She is not
seeking a change in legal guardianship or in the children’s placement, but just
a change in her visitation rights. As
the Department contends, there are other channels for resolving issues relating
to a sex offender’s presence in the home; in the context of a request for a
change in a visitation order, the point is simply not relevant. And, mother’s claim that the legal guardian
is refusing to allow mother to visit with the children is likewise disconnected
from the relief she seeks. Mother does
not seek enforcement of the court’s original order, giving her monitored
visitation every other Saturday for four hours; does not reveal what her
current living circumstances are; and does not provide any description of the
circumstances of the legal guardian’s alleged refusal to allow mother to
visit. (See In re Ramone R., supra,
claims in a section 388 petition are insufficient to require a hearing].) Indeed, mother’s petition contains no
information on her current circumstances, except to say that she “is attending
treatment program with intensive counseling” and to attach documents—prepared a
full six months before her petition—found insufficient by the juvenile court
when it denied her previous petition. No
abuse of the juvenile court’s discretion appears.
The order is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
RUBIN, Acting P. J. FLIER, J.
name="_ftn1" title="">[1] All undesignated statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Under section 366.4, subdivision (a),
“[a]ny minor for whom a guardianship has been established resulting from the
selection or implementation of a permanency plan pursuant to Section 366.26 is
within the jurisdiction of the juvenile court.”
