Filed 9/30/26 In re R.A. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
In re R.A., a Person Coming Under the Juvenile Court C105922
Law.
(Super. Ct. No. 23DP00169)
BUTTE COUNTY DEPARTMENT OF
EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
H.A.,
Respondent;
R.A.,
Appellant.
.
The minor R.A. (minor) appeals from the juvenile court’s denial of the father,
H.A.’s (father) petition pursuant to Welfare and Institutions Code 1 section 388. Father’s
petition asserted that the juvenile court made various errors early in the dependency
proceedings that required correction and the vacatur of numerous downstream orders.
Minor now argues the court applied the wrong standard in denying father’s petition. We
affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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BACKGROUND
On August 25, 2023, the Butte County Department of Employment and Social
Services, Children’s Services Division (the Department) filed a dependency petition
alleging that minor (then two years old) had suffered, or was at substantial risk of
suffering, serious physical harm as a result of the inability or failure of her parent to
supervise or protect her adequately (§ 300, subd. (b)(1)). The petition alleged that the
mother, S.H. (mother) had been arrested for disturbing the peace as well as being under
the influence. Mother later met with a social worker and admitted to ongoing fentanyl
use.
According to the detention report, mother initially stated the alleged father resided
in Saudi Arabia and that she did not have a phone number or any way to contact him.
But while the social worker was meeting with mother, mother was able to message father
on social media regarding minor being detained by children’s services and his response
was “ ‘I don’t want to hear it and I do not care.’ ” The detention report indicated the
Department was unable to locate father. Father is listed on minor’s birth certificate.
At the detention hearing on August 28, 2023, the juvenile court appointed counsel
for minor. Mother said the only contact information she had for father was his Facebook.
Mother had no contact information for father’s relatives, though she knew the name of
the town they lived in. Mother told the court she was married to father at the time of
minor’s birth, that father was present for minor’s birth, and that father lived with them for
a year and a half. The court found that notice had been given as required by law and
ordered minor detained. At the jurisdiction hearing on September 7, 2023, the juvenile
court sustained the dependency petition.
In its disposition report, the Department stated that father “has had limited
correspondence via email with Children Services and his current circumstances remain
unknown.” The report stated that “despite reasonable efforts, Children’s Services has
been unable to engage [father] in services at this time” and that father “has been notified
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of Court, correspondence with [father] has occurred via email and Children Services has
request[ed] he provide the [Department] with a telephone number.” The report indicated
that the Department “will continue to attempt to engage” with father. At the disposition
hearing on September 28, 2023, the juvenile court found notice had been given as
required by law and authorized placement of minor in the approved home of a relative,
the approved home of a nonrelative extended family member, or in a foster home.
On March 12, 2024, the Department filed a motion to continue the six-month
review hearing. The motion stated that the Department had been in contact with alleged
father in Saudi Arabia, that father had received notice of the hearing, and that father
expressed via e-mail wanting to have minor in his care. The juvenile court granted the
motion to continue. At a hearing on March 14, 2024, the court appointed counsel, Dale
Rasmussen, to represent father.
According to the status review report filed on March 29, 2024, father had been out
of contact with the Department throughout the life of the case and had only recently
become responsive to the Department’s attempts to engage him. The report stated that
the Department had only been able to contact father electronically through e-mail. Father
returned an e-mail to the Department in March 2024 stating he wished minor to be sent to
Saudi Arabia to live with him. The report stated that the Department had not yet been
able to assess father or his home for safety and appropriateness. The Department
provided father with a JV-140 form to provide the court with his mailing address, a JV-
141 form to agree to receiving electronic notices from the court, and a JV-505 form to
declare paternity.
On April 4, 2024, father filed the forms provided by the Department. At the
April 4, 2024, hearing, the juvenile court again continued the six-month review hearing.
At a later hearing, the court explained that father had failed to appear over Zoom at the
April 4, 2024, hearing. At the hearing on April 25, 2024, father had not logged into
Zoom to appear. The juvenile court again continued the matter for father’s appearance.
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The court stated: “I’m frustrated with his lack of cooperation with the Court. … [¶] … I
need to hear from Mr. Rasmussen what his client’s position is. I need him to cooperate
with the Court. … [¶] So I just feel that the Court and Counsel and [the Department] are
working harder at getting [father] engaged in this process than he is.”
On May 9, 2024, father made his first appearance in the case. The juvenile court
designated father as presumed father. The court said, “I think what needs to happen at
this point is the [Department] and the Court and Mr. Rasmussen need to look at what the
possibility is of him having custody of this child. So — because we are at a six-month
review.”
On May 24, 2024, the Department filed an amended status review report stating it
had reached out to father to offer him visitation with minor and to discuss what services
and support father required to have minor in his care in Saudi Arabia. At the time of the
report, the Department was still waiting for a response from father. The Department
recommended that father be granted family reunification services. The Department
submitted an updated case plan to reflect changes in the case since father made his
appearance. The juvenile court ordered visitation for father through monitored video and
phone calls and granted father reunification services.
The status review report filed September 30, 2024, stated that father had made
progress toward his case plan objectives and the services provided. Father was working
to obtain a visa to travel to the United States and transport minor home with him. The
report indicated that father was cooperative and responsive. The minor’s care providers
remained strong advocates for father and supported him reunifying with minor. They
offered to have father in their home as part of the transition. They also offered to travel
with minor to Saudi Arabia to return her to her father’s care in the event father was
unable to travel to the United States.
The status review report filed March 28, 2025, recommended that family
reunification services be terminated for father and that a termination of parental rights
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hearing be set. The report stated that father had contacted the social worker through e-
mail stating he had accepted a job offer two weeks ago and had moved over eight hours
away from his family. Since this move, father had been missing visits with minor and
leaving his visits early. On March 4, 2025, father e-mailed Rasmussen, the social
worker, and minor’s care providers, saying that minor “ ‘deserve[s] a better life that I’m
not included. I can’t put her through this anymore. Sorry I love her.’ ” The
Department’s further attempts at discussion with father led the Department to believe that
father was no longer interested in family reunification. Father stated that he would like
minor to remain in her current placement and for her care providers to provide her
permanency. Father was instructed to contact his attorney regarding this decision. Father
e-mailed on March 7, 2025, stating, “ ‘Don’t wanna put her through too much she
deserves better!! As long I’m able to be in touch.’ ” The report stated it had been
difficult to remain in contact with father since his March 7 e-mail. At an emergency
meeting on March 14, 2025, father indicated, “he would like an open adoption, to be able
to continue to communicate with her, but that he is not ready for her to come live with
him at this point.” Father reported he did not think he would be able to get a visa and
was not going through with it.
The report explained that minor had not responded well to the possibility of
relocating to Saudi Arabia to be placed in father’s care. She developed a rash that
doctors could not explain. Her care providers stated that they thought the rash may be
stress-related. They also reported that minor woke up at night crying and that these sleep
disturbances had increased since the initial discussion about her moving. Minor also
began having meltdowns around the time she began video visits with father. According
to the report, once minor learned she may be going home to father, she had “3-4
‘meltdowns’ a day, up from 1-2 per month and that she has expressed a fear of leaving
[her care providers’] home. [Minor] is not sleeping at all, many nights just screaming
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and crying until her voice is hoarse. She is hitting herself and throwing herself on the
floor.”
At the 18-month review hearing on April 3, 2025, Rasmussen requested a
continuance to meet with father and discuss the report. Rasmussen said he had recent e-
mail contact with father “where he raised a number of new issues and made some sort of
elliptical comments about more time, money, and other things needed to try to get the
visit visa and get over here. He did not respond to my follow-up e-mail.” Counsel for
the Department noted that father was “wavering as to his ability to parent the child.” She
stated she had spoken to people at the Saudi Arabia consulate as part of the case plan.
The juvenile court continued the hearing.
At the hearing on April 17, 2025, Rasmussen told the juvenile court he had
conferred with father (who was present at the hearing) and explained to him that if the
court adopted the Department’s recommendations, it would result in a high likelihood of
adoption being the permanent plan. Rasmussen stated that: (1) father wanted a contested
hearing so that reunification services were not terminated; and (2) father was still
seeking, at this point in time, custody and placement of minor with him in Saudi Arabia.
Counsel for the Department expressed significant concerns about delaying permanency
for minor. She stated father had been canceling visits frequently; that when father was in
a virtual visit, he was often doing something else, like grocery shopping; and he was only
staying in the visitations for five or 10 minutes.
At the hearing on May 29, 2025, the Department reported that a contested hearing
was not necessary and requested that the juvenile court provide an additional six months
of services to father. The court found by clear and convincing evidence that it was in the
best interest of minor to provide additional reunification services to father. The juvenile
court found good cause to continue the 18-month status review to November 2025.
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In June 2025, the juvenile court relieved Rasmussen as father’s counsel and
appointed successor counsel. The record indicates that Rasmussen passed away at some
point during the dependency proceedings.
In a status review report filed November 10, 2025, the Department recommended
that reunification services be terminated for father and that a section 366.26 hearing be
set. The report stated that: (1) father’s visits had been sporadic, with 43 percent being
canceled since the most recent court date; (2) of the visits father had attended, he left
early or got on late eight times by five to 20 minutes; (3) father had not been responding
to e-mails without repeated prompting; and (4) father failed to actively participate in the
development of a plan to return minor to his care. At the hearing on November 13, 2025,
father requested a contesting hearing, which was ultimately set for March 3, 2026.
On March 2, 2026, father petitioned under section 388 to “change prior order
i[]dentifying father as ‘alleged’ to ‘presumed from birth’, vacate downstream orders and
direct a [section] 361.2 assessment.” (Capitalization omitted.) The petition asserted that
the case had proceeded for months on the incorrect legal premise that father was an
“alleged father,” even though information available to the Department and the juvenile
court established that father was a presumed father. The petition contended that because
father was a presumed father and a nonoffending parent, the juvenile court was required
to evaluate father for placement under section 361.2. According to the petition, “[t]he
consequences of this foundational error cascaded through every subsequent hearing” and
“all subsequent orders are legally defective.” The petition also asserted that father’s
initial counsel had never spoken with father and that this failure deprived father of his
ability to assert his rights under section 361.2. In support, minor’s counsel submitted a
declaration averring that in May 2025 Rasmussen said to her “that he had never spoken
with his client during the period he represented him.”
At the 18-month/24-month review hearing on March 3, 2026, father’s counsel
argued his section 388 petition established a prima facie showing for relief. Counsel
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claimed that: (1) the “changed circumstance” was that father should have been declared a
presumed father earlier in the case; (2) the “new evidence” was that the Department
“made no efforts to locate or assess father for seven months”; and (3) the changes
requested by the petition “may promote the child’s best interest” because father is
nonoffending, appropriately stable, and was consistently engaged. Counsel also asserted
that her claim of ineffective assistance of counsel supported the relief sought.
The juvenile court said: “The Court feels it’s important to acknowledge some of
the history in this case. [Father] has been recognized as a presumed parent since
May 10th of 2024. It appears that [father] was residing in Saudi Arabia at the time of the
disposition hearing. He was designated as an alleged father at that Disposition Hearing
on September 29th of 2023. [¶] Mr. Rasmussen was appointed to represent [father] on
March 14th of 2024, the date that was originally calendared for the 6-month review.
Prior to that, [the Department] had made contact with [father] and provided him with a
JV 505 and a JV 140. [¶] [Father] had expressed to [the Department] via e-mail that he
wanted to have [minor] in his care. The case was continued to April 4th of 2024. A
Zoom appearance was authorized for [father], but he did not appear via Zoom on either
April 4th or the next court date, April 25th of 2024. [¶] [Father] first appeared in court
via Zoom on May 9th of 2024. At his first appearance he was designated the presumed
father. He was treated as such from that date moving forward. The 6-month review was
not held until June 11th of 2024. And at that time Reunification Services were ordered to
[father].”
The juvenile court concluded that the issues raised in father’s petition had been
forfeited. The court explained how father failed to raise this issue previously and failed
to appeal from any of the orders entered by the court since father appeared in the case.
The court further explained, “the Department’s efforts at reunifying [minor] with [father]
have been extensive throughout the life of this case. The social workers have made
significant efforts at obtaining the appropriate Visa and/or passport for [minor] to travel
8
to Saudi Arabia. They’ve consulted with the Saudi Consulate. They’ve reached out to
numerous legal counsel and agencies in an effort to conduct an appropriate home study
for [father]. [¶] The record before the Court indicates that [father] has made minimal
efforts at arranging for [minor] to travel to Saudi Arabia to be placed in his care.”
As to the assertion of ineffective assistance of counsel, the juvenile court said,
“even if the Court were to accept the argument that Mr. Rasmussen did not communicate
with his client, I don’t have any information that said lack of contact resulted from Mr.
Rasmussen not reaching out to his client. Counsel can’t very well communicate with a
client that doesn’t reach out to them. [¶] And even if [father] asserted that he made
efforts to reach out to his previous attorney, I don’t have any way of ascertaining Mr.
Rasmussen’s position on that because he’s since passed away. [¶] So the court finds that
no prima facie showing has been made on the 388 petition. Therefore the petition is
denied.”
Minor timely appealed the juvenile court’s denial of father’s section 388 petition.
DISCUSSION
Minor contends the juvenile court erred in denying father’s section 388 petition.
To understand minor’s arguments and the standards that applied in the juvenile court and
in this court, we must first discuss section 361.2, section 388, and the interplay between
the two statutes.
I. Section 361.2
After a juvenile court assumes jurisdiction over a child under section 300, it must
determine the appropriate disposition for that child. (§§ 360, subd. (d), 361, 362; In re
N.M. (2011) 197 Cal.App.4th 159, 169.) Section 361.2, subdivision (a) provides: “If a
court orders removal of a child pursuant to section 361, the court shall first determine
whether there is a parent of the child, with whom the child was not residing at the time
that the events or conditions arose that brought the child within the provisions of Section
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300, who desires to assume custody of the child. If that parent requests custody, the court
shall place the child with the parent unless it finds that placement with that parent would
be detrimental to the safety, protection, or physical or emotional well-being of the child.”
Under this provision, if a noncustodial parent wants to assume custody of the child, the
court must place the child with that parent unless the court finds it would be detrimental
to do so by clear and convincing evidence. (In re A.C. (2020) 54 Cal.App.5th 38, 42-43.)
To qualify as a noncustodial parent for these purposes, an alleged father must have
attained presumed-father status. (In re Zacharia D. (1993) 6 Cal.4th 435, 454.) The
burden is on the party opposed to placement with the noncustodial parent to prove
detriment by clear and convincing evidence. (In re K.B. (2015) 239 Cal.App.4th 972,
979.)
II. Section 388
Section 388, subdivision (a)(1) provides that “[a]ny parent or other person having
an interest in a child who is a dependent child of the juvenile court … may, upon grounds
of change of circumstance or new evidence, petition the court … for a hearing to change,
modify, or set aside any order of court previously made or to terminate the jurisdiction of
the court.” In general, a section 388 petition to modify a prior juvenile court order
requires the petitioner to show, by a preponderance of the evidence, both (1) a change in
circumstances or new evidence, and (2) that the requested order is in the child’s best
interests. (In re J.M. (2020) 50 Cal.App.5th 833, 845.) “[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. [Citations.] 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. (1999) 77 Cal.App.4th
799, 806.)
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The determination of a section 388 petition is reviewed for abuse of discretion.
(In re Marcos G. (2010) 182 Cal.App.4th 369, 382.) “We must uphold the juvenile
court’s denial of [a] section 388 petition unless we can determine from the record that its
decisions ‘ “exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.” ’ ” (In re Brittany K. (2005) 127 Cal.App.4th
1497, 1505). “ ‘The denial of a section 388 motion rarely merits reversal as an abuse of
discretion.’ ” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
III. Interplay Between Section 361.2 and Section 388
In In re Zacharia D., our Supreme Court explained that section 361.2 generally
applies only at a certain stage of dependency proceedings: “Nothing in this statute
suggests that custody must be immediately awarded to a noncustodial parent regardless of
when in the dependency process the parent comes forward. Rather, its language suggests
that the statute is applicable only at the time the child is first removed from the custodial
parent or guardian’s home.” (In re Zacharia D., supra, 6 Cal.4th at p. 453.)
But in In re Jonathan P. (2014) 226 Cal.App.4th 1240 (Jonathan P.), the court
concluded that section 361.2’s “detriment standard” may apply after disposition when a
party seeks to change a child’s placement through a section 388 petition. In that case, the
minor had become the subject of dependency proceedings due to domestic violence
involving his mother. (Jonathan P., at p. 1244.) Through the time of the dispositional
hearing, the minor’s father’s whereabouts remained unknown. (Id. at p. 1245.) The
minor was declared a dependent of the court and removed from the mother’s custody.
(Ibid.) The minor later reported that the father had been deported but had returned to the
country illegally. (Id. at p. 1246.) The father made his first appearance in the case at the
six-month review hearing, was appointed legal counsel, and was declared a presumed
father. (Id. at p. 1247.) The father requested that the minor be placed with him. (Ibid.)
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The child services department argued, and the court agreed, that the father was required
to file a section 388 petition. (Jonathan P., at p. 1247.) The court instructed the father’s
attorney to do so. (Ibid.) The father did so, seeking custody of the minor and appropriate
services. (Id. at p. 1248.) The child services department argued neither prong of the
section 388 test could be met — that is, there was no changed circumstances or new
evidence nor was it in the minor’s best interest. (Jonathan P., at p. 1250.) The juvenile
court ultimately denied the petition. (Ibid.)
On appeal, the father asserted that his request for custody should have been
reviewed under section 361.2, rather than section 388. (Jonathan P., supra,
226 Cal.App.4th at p. 1251.) In his view, once he appeared for the first time and
requested custody, the juvenile court was required to place the minor with him unless the
child services department proved by clear and convincing evidence that the placement
would be detrimental to the minor. (Ibid.)
The appellate court first considered whether the father’s contention was forfeited
by his failure to assert below that the section 361.2 standard applied to his custody
request. (Jonathan P., supra, 226 Cal.App.4th at pp. 1251-1252.) The appellate court
explained it would exercise its discretion to address the issue because: (1) it was
primarily a legal question; and (2) the father did not file the section 388 petition because
he believed that section 388 should govern his custody request but, rather, because that
was the only means through which the court indicated that it would consider the request.
(Jonathan P., at p. 1252.)
As to the merits, the appellate court stated that “[t]his appeal presents the question
of whether section 361.2 applies to a request for custody by a nonoffending, noncustodial
parent made after the dispositional phase of the dependency proceedings.” (Jonathan P.,
supra, 226 Cal.App.4th at p. 1253.) The court acknowledged that, under the statutory
language and Zacharia D., “section 361.2, subdivision (a) appears to have limited
application beyond the disposition phase of the proceedings.” (Id. at p. 1255.) But, the
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court explained, “it is of great concern that a nonoffending parent, who has cooperated
with the court and the [child services department] throughout the proceedings, who
immediately and repeatedly requested custody, and who appeared in the proceedings as
soon as he learned of them, has been deprived of custody without any court ever finding
that placement with him would be detrimental to the minor. Here, [the father’s] only
failing was that he did not appear (apparently through no fault of his own) earlier in the
proceedings. Indeed, we are concerned about the adequacy of the [child services
department’s] efforts to find [the father] and provide him with notice of the proceedings
earlier in the case. … [¶] Equally troubling is the [child services department’s] trial
counsel’s repeated references to [the father’s] immigration status during the proceedings
in the dependency court. … The law is clear … that … citizenship status is not a legally
relevant consideration in these matters.” (Id. at pp. 1255-1256.)
The appellate court continued: “If [the father] had attended the disposition hearing
and had [the father] requested custody at that time, he would have been entitled to it
absent a showing by the [child services department] of detriment to Jonathan P. …
[Citation.] Here, however, [the father] was required to demonstrate that placing Jonathan
P. with him served Jonathan P.’s best interest. The ‘finding of detriment standard’ and
the ‘best interest standard’ are not legal equivalents. … [¶] In view of the totality of
circumstances of this case, in our view the dependency court should not have required
[the father] to prove his entitlement to custody pursuant to section 388. Instead, the court
should have analyzed the request under section 361.2, subdivision (a).” (Jonathan P.,
supra, 226 Cal.App.4th at p. 1256.)
IV. The Parties’ Contentions in This Appeal
Minor asserts the juvenile court made numerous errors in this case as it pertains to
father. In her view: (1) the juvenile court should have declared father was a presumed
father at the onset of the case based on information provided by mother; (2) father should
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have been appointed counsel sooner than he was; “no efforts to locate or properly notice”
father were made until months into the proceedings; and (3) father was entitled to a
placement assessment under section 361.2 upon his first appearance. Minor contends
that, given these circumstances and Jonathan P., the burden was on the Department to
prove it would be detrimental to place minor with father and the juvenile court erred in
applying the wrong standard when considering father’s section 388 petition.
The Department responds: (1) the juvenile court did not err by declaring father to
be a presumed father at the onset of the case because the burden rested with father to
affirmatively request and prove his presumed father status; (2) under Zacharia D., the
section 361.2 standard does not apply postdisposition; (3) father’s section 388 petition
should be assessed under the typical “change of circumstances” and “best interest”
standards; (4) minor, who was represented by counsel throughout the proceedings,
forfeited any argument premised on insufficient notice to father by failing to object on
this basis in the juvenile court; and (5) minor forfeited the argument that father was
entitled to a determination of custody under section 361.2.
V. Analysis
We reject minor’s assertion that the juvenile court should have applied section
361.2’s “detriment standard” when considering father’s section 388 petition. Neither
father nor minor argued this standard applied to father’s request in the juvenile court. In
fact, father expressly argued the petition under the typical section 388 standard,
explaining how changed circumstances and new evidence justified the relief sought and
why the relief may have been in minor’s best interest. Jonathan P. did not hold that
section 361.2 governs every postdisposition request implicating a noncustodial parent’s
right to custody. Rather, the appellate court explained that “[i]n view of the totality of
circumstances of this case … the [juvenile] court should have analyzed the request under
section 361.2, subdivision (a).” (Jonathan P., supra, 226 Cal.App.4th at p. 1256, italics
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added.) It is thus incumbent on the requesting party to assert in the juvenile court that,
given the circumstances of the particular case, the court should assess the request under
section 361.2 rather than under section 388. That did not happen here. As such, the
argument that section 361.2 governed father’s section 388 petition has been forfeited.
Anticipating this conclusion, minor requests we exercise our discretion to consider
the argument, as the court did in Jonathan P. We decline to do so. Unlike in Jonathan
P., the juvenile court here did not instruct father to file a section 388 petition or direct
him to argue his request in a specific way or under a certain standard.
Even if this argument was not forfeited, we would conclude that Jonathan P. does
not apply here. In reaching its holding, Jonathan P. emphasized how “it is of great
concern that a nonoffending parent, who has cooperated with the court and the [child
services department] throughout the proceedings, who immediately and repeatedly
requested custody, and who appeared in the proceedings as soon as he learned of them,
has been deprived of custody without any court ever finding that placement with him
would be detrimental to the minor.” (Jonathan P., supra, 226 Cal.App.4th at p. 1255.)
The circumstances of the present case are far different than those in Jonathan P.
Critically, unlike the father in Jonathan P., father did not file his section 388 petition
when he first appeared in the case and was declared a presumed father. While father
expressed an interest in bringing minor to Saudi Arabia early in the case, it was not until
nearly two years later that father asserted he was entitled to a custody assessment under
section 361.2. This matters because custody under section 361.2 is triggered by the
request from the noncustodial parent: “If that parent requests custody, the court shall
place the child with the parent unless it finds that placement with that parent would be
15
detrimental to the safety, protection, or physical or emotional well-being of the child.”
(§ 361.2, subd. (a), italics added; see also In re A.A. (2012) 203 Cal.App.4th 597, 605.) 2
Minor’s claim on appeal is premised on the contention that the juvenile court
applied the wrong standard in denying father’s section 388 petition. As explained, we
reject that contention and conclude that the typical section 388 standard governed father’s
petition. As the petitioning party, father bore the burden of proving in the juvenile court,
by a preponderance of the evidence, both a change in circumstances or new evidence and
that the proposed modifications served minor’s best interest. (In re D.B. (2013)
217 Cal.App.4th 1080, 1089.) Minor raises no argument in this appeal that father
satisfied that burden or that, under this standard, the juvenile court abused its discretion.
“Perhaps the most fundamental rule of appellate law is that the judgment challenged on
appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see also In re J.F.
(2019) 39 Cal.App.5th 70, 79 [“The juvenile court’s orders are ‘presumed to be correct,
and it is appellant’s burden to affirmatively show error’ ”].) Minor fails to satisfy that
burden here. Accordingly, we reject minor’s claim of error.
2 Our conclusion is not affected by father’s assertion that his initial lawyer,
Rasmussen, provided ineffective assistance of counsel. Minor does not discuss this
aspect of father’s section 388 petition or raise any arguments relating to it. The sole
support for the assertion of ineffective assistance of counsel was a declaration from
minor’s trial counsel averring that Rasmussen told her he had never spoken to father
when he represented him. Initially, we note that this averment is readily contradicted by
the record, which includes instances of: (1) Rasmussen and father appearing at the same
hearings; (2) Rasmussen indicating to the juvenile court that he was discussing certain
issues with father; and (3) Rasmussen being e-mailed by father. Further, given the
indications in the record that Rasmussen and the Department primarily communicated
with father through e-mail, the hearsay statement may be interpreted to mean that
Rasmussen never spoke orally to father — not that Rasmussen and father never
communicated about the case. In any event, for the reasons articulated by the juvenile
court, father’s section 388 petition fell short of alleging deficient performance by
Rasmussen.
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DISPOSITION
The juvenile court order denying father’s section 388 petition is affirmed.
/s/
EARL, P. J.
We concur:
/s/
BOULWARE EURIE, J.
/s/
FEINBERG, J.
17