In re Kerrie S.

Filed 12/30/09 In re Kerrie S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Mackel, Juvenile Court Referee. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Objector and Appellant.

James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Petitioner and Respondent.

INTRODUCTION

Anne S., mother of Luis S. (now 13 years old) and Kerrie S. (now 10 years old) appeals from the order of the juvenile court that summarily denied her Welfare and Institutions Code section 388[1] petition, filed on December 29, 2008, asking the court to return the children to her custody or increase her visitation. She contends that her claim that the children had disclosed new allegations of physical and sexual abuse constituted prima facie evidence entitling her to a hearing on her petition. We disagree and affirm the courts order.

FACTUAL AND PROCEDURAL BACKGROUND

1. History of this case prior to the events that are the subject of this appeal

As this is Annes sixth appeal, we cull the relevant background information from our previous opinions. The juvenile court declared the children dependents under section 300, subdivision (b), removed the children and ordered Anne to undergo individual counseling to address case issues, such as her anxiety and anger, among other things. Issues leading to this dependency included the state of Annes mental health, which affect[ed] her judgment and ability to properly care for and supervise her children. As a result of these mental health issues, Anne made inappropriate decisions for the children and she had a long-standing history of making false allegations and accusations to the detriment of her children. Anne was agitated, confrontational, and uncooperative in front of the children. She was argumentative, violated the courts visitation orders, undermined and demeaned the childrens relationships with their grandmother, and was unable to conform to the conditions of her visits. The juvenile court terminated reunification services because Anne made questionable progress in therapy and her visits ran the gamut from monitored to liberalized and back to supervised. The court concluded, although Anne had complied with her case plan, that the children would be at risk if returned to Annes care because of her inability to recognize the fact that her numerous false allegations about the childrens caretakers, her persistent need for therapy, her instability, distortion, and lack of impulse control, put the children at risk.

At the section 366.26 hearing, the court appointed the childrens paternal grandmother, H. D., as their legal guardian. In August 2008, we affirmed the juvenile courts partial denial of Annes section 388 petition requesting return of the children to her custody. Also, we rejected Annes contention that the grandmother was not a suitable guardian (B198749).

Anne filed another section 388 petition in 2008, again seeking return of the children to her. This petition was based on allegations contained in a section 387 supplemental petition, filed by the Department of Children and Family Services (the Department), alleging that Kerrie was the victim of sexual abuse by a 14-year-old neighbor child. Kerrie had related this accusation to her therapist. In October 2008, we affirmed the juvenile courts order dismissing the supplemental petition ( 387) and summarily denying Annes section 388 petition and oral request for expanded visits (B205586).

2. Annes December 2008 section 388 petition for modification

On December 12, 2008, the juvenile court ordered additional visitation for Anne. Specifically, as the children were on winter vacation from school, the court granted Anne, in addition to the unmonitored visits on the first and third weekend of December already allowed her, unmonitored visits (1) from December 12, 2008 at 6:00 p.m. to December 14, 2008 at 6:00 p.m., (2) from December 26, 2008 at 10:00 a.m. to December 29, 2008 at 6:00 p.m., and (3) from January 2, 2009 at 10:00 a.m. to January 4, 2009 at 6:00 p.m.

On December 29, 2008, Anne filed another section 388 petition seeking to change the standing orders placing the children with their guardian. Instead, Anne asked the court to place the children with Anne or allow her to have visits every weekend. In response to the question What changed after the judges order that would change the judges mind, Anne wrote, minors disclosed new physical/sexual abuse in pgms[2] home 12/19/08 and alleged that the grandmother violated the December 12, 2008 order by refusing to transport the children to the North Hollywood Police Department for a visit. To explain how the requested changes would be in the childrens best interest, Anne asserted: Grandmother is continuing to allow my kids to be abused in her home. She may be mentally incapable of supervising them. She continues to pressure my kids to say negative things re: (mother). Grandmother refuses to follow court-ordered visit schedule. Anne attached no supporting documentation other than the courts visitation order from December 12, 2008.

The juvenile court denied the section 388 petition because it (1) failed to state facts to support what was requested, (2) failed to state new evidence or a change of circumstances, and (3) failed to show that it would be in the childrens best interest to change the prevailing orders. Anne filed a notice of appeal.

CONTENTIONS

Anne contends that the juvenile court abused its discretion in summarily denying her petition for modification because she made a prima facie showing entitling her to a hearing.

DISCUSSION

1. The juvenile court did not abuse its discretion in summarily denying Annes section 388 petition.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minors best interests. [Citations.] (In re S.M. (2004) 118 Cal.App.4th 1108, 1119, italics added.) The petition for modification under section 388 must contain a concise statement of any change of circumstance or new evidence that requires changing the [prior] order. (Cal. Rules of Court, rule 5.570(a)(7), italics added.) The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)[3] Thus, [t]here are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] (In re Anthony W. (2001) 87 Cal.App.4th 246, 250, italics added.)

When determining whether the petition makes the necessary showing, the juvenile court must liberally construe it in favor of its sufficiency. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) Section 388 specifies that the court must order a hearing be held, [i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . . ( 388, subd. (d), italics added.)  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. [Citations.]  (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)[4]

Among the reasons the juvenile court denied Annes section 388 petition filed on December 29, 2008, was that the request did not state new evidence or a change of circumstances. As we have explained before,  specific allegations describing the evidence constituting the proffered changed circumstances or new evidence [are] required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. In In re Jeremy W. [(1992)] 3 Cal.App.4th [1407,] 1413-1415, not only had the departments reports evidenced the alleged change in circumstances, but the mothers declarations attached to her section 388 petition directly addressed deficiencies in the reports, justifying a hearing on the section 388 petition. (In re Anthony W., supra, 87 Cal.App.4th at pp. 250-251, italics added, original italics omitted.) The requirement that supporting evidence be attached to the petition is designed to enable the juvenile court to determine preliminarily whether, if  given credit at the hearing,  such evidence  would sustain a favorable decision on the petition. [Citations.] (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) Stated otherwise, [i]f a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

Here, Annes petition contained nothing but bald allegations that minors disclosed new physical/sexual abuse in PGMs home 12/19/08 and [H. D.] violated a court order dated 12/12/08 & refused to bring kids to North Hollywood P.D. for visit. Not only do her allegations fail to specify what kind of abuse, sexual or physical, but no declaration or other evidence to support her allegations or provide clarifying information was attached. Anne has filed numerous section 388 petitions in the past, and so she knows that those that warranted a hearing in the first instance contained specific, detailed factual descriptions along with supporting documentation. Just a year ago, Annes section 388 petition containing allegations of sexual abuse was supported by documentation, namely, a section 387 supplemental petition alleging the abuse, along with reports from the Department that Kerrie had told her therapist about the abuse. With respect to this most recent section 388 petition, the juvenile court did not abuse its discretion in finding the bare allegations did not make out a prima facie case.

Anne insists we should consider the entire dependency. She argues This prima facie showing of new evidence is particularly important in light of the allegations of sexual abuse previously disbelieved by the juvenile court and contained in a section 387 petition which was dismissed. Just so. The juvenile court may consider the factual and procedural record of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) As we explained in past opinions in this case, this dependency is marked by Annes long-standing history of making false, and unfounded accusations. This parents history is a classic example of why the assertion of mere general, conclusory allegations is insufficient and would utterly vitiate section 388s requirement that the court initially determine whether an evidentiary hearing was warranted. (In re Edward H., supra, 43 Cal.App.4th at p. 593.)

Furthermore, not only does Anne have a long-standing tendency to cry wolf, but the Departments most recent status review report contradicts the accusation in Annes section 388 petition. The report from just one month before Annes petition shows that the social worker had several contacts with the grandmother and found that the children were happy in their placement. Both Luis and Kerrie had adjusted well to their placement, were happy living there, and considered it their home. The children themselves stated to the social worker that while they enjoy visiting with their mother, they want to live with their grandmother. They stated on several occasions that their grandmothers house is their home. The grandmother is very cooperative with the Department. She told the social worker that she is grateful for the social worker and is willing to do whatever the court and Department ask of her. Moreover, the children were thriving in school:  Recently, Kerrie received the Most Improved award for her class and Luis was awarded for Math Excellence. Furthermore, the childrens therapist felt the children no longer needed individual treatment and Kerrie had ceased individual therapy. Their family therapist opined that the children are not at risk with their grandmother. He specifically reported that he did not see any abuse or neglect concerns and found the grandmother to be nurturing towards the children and aware of the childrens whereabouts at all times. Indeed, the only problems reported by the Department were (1) Annes failure to comply with the court-ordered requirements for picking up and dropping off the children from visits; and (2) Annes continued failure to see a court-approved counselor, despite the courts repeated orders throughout this dependency that she see only an approved therapist.[5] The Departments reports directly contradict the allegations in Annes section 388 petition concerning physical/sexual abuse and suggest that it was Anne, not the grandmother who has been violating the courts visitation transfer orders. Given those reports, the juvenile court did not err in requiring Anne to do more than make mere allegations that were unsubstantiated by any proposed evidence, to carry her burden under section 388.

As Anne did not carry her burden under section 388 to show prima facie either new evidence or a change in circumstances, the juvenile court did not abuse its discretion in summarily denying Annes December 29, 2008 petition for modification. We need not address the second part of Annes prima facie case.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] PGM is the acronym used for the paternal grandmother.

[3] Section 388, subdivision (a) reads: Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.

[4] Anne argues the form JV-180 Request to Change Court Order contains an improper standard for summarily denying a section 388 petition. Specifically, she cites section 388, which requires a hearing be held if the proposed change of order might or may promote the childs best interest. ( 388, subd. (d).) Yet, the judicial council form provides a box for the court to check, next to The request does not show that it will be in the best interest of the child to change the order. (Italics added.) Thus, she challenges the form as legally infirm. We conclude, regardless of whether the form is legally infirm (and we think the Judicial Council should take a look at the form to assure that it conforms with the statute), we are not called on to consider the second prong of Annes showing because, as we shall explain, we conclude that Anne failed to carry her burden on the first prong of her prima facie showing. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

[5]In re Lesly G. (2008) 162 Cal.App.4th 904, cited by Anne, is distinguished. There the juvenile court ruled that  [t]he best interest of the child may be promoted by the requested new order and the petition state[d] a change of circumstances or new evidence, and notif[ied the mother] that a hearing would take place and yet failed to hold a hearing on the section 388 petition. (In re Lesly G., supra, at p. 912.) The appellate court in Lesly G. held that, where the juvenile court found a prima facie case had been established and expressly notified the petitioner that a hearing would be held, it could not dispense with a hearing altogether or . . . require that a petitioner expressly request a hearing . . . . (Id. at p. 914.) In contrast, here, the juvenile court first ruled that the predicate prima facie showing had not been made. Because the court did not abuse its discretion, it did not err in summarily denying the petition for modification without holding a hearing.