In re J.C.
Filed 4/11/13 In re J.C. CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.C., et al., Persons Coming Under the Juvenile
Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
A.C.,
Defendant
and Appellant.
E057343
(Super.Ct.Nos. J240444, J240445, J240446, J241228)
O P I N I
O N
APPEAL from the Superior
Court of
Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Pamela Rae Tripp, under appointment
by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County
Counsel, and Kristina M. Robb,
Deputy County Counsel, for Plaintiff and Respondent.
At a hearing held pursuant to
Welfare and Institutions Code section 366.26,
of defendant and appellant A.C. (Mother) with respect to her four
children. On appeal, Mother contends the
court erred when it denied her a hearing on her request to change court order,
commonly referred to as a section 388 petition.
We reject this argument and affirm the trial court’s orders.
I. FACTUAL AND
PROCEDURAL SUMMARY
A.
In
August 2008, Mother had three children:
J1, J2, and J3. Their ages at
that time were three years, two years, and seven months, respectively. In that month, J3 was treated at a hospital
for a broken arm. The hospital contacted
defendant and appellant San Bernardino County Children and Family Services
(CFS) and law enforcement because the break was “suspicious.†Following an investigation, CFS filed petitions
for dependency jurisdiction concerning the three children. The court found true allegations, among
others, that J3 sustained a severe injury under Mother’s care that would not
have occurred under adequate supervision and customary caretaking. In October 2009, after Mother completed
reunification services, the case was dismissed.
B.
Dependency Case
In
August 2011, J1, J2, and J3 were ages six years, five years, and three years,
respectively. Mother was living with her
boyfriend, Jermaine B., at the time.
On
August 21, 2011,
J3 (the youngest) nearly drowned when Jermaine left her briefly unattended in a
bathtub. The child was taken to the
hospital where a doctor found bruises on J3 in different stages of healing,
thermal burns on her legs and back, and a laceration on her liver. The doctor told a social worker the injuries
were “‘highly suspicious.’â€
A
social worker conducted an investigation and interviewed Mother, Jermaine, and
the children. She learned that Jermaine
had been physically abusive to the children.
On one occasion, Jermaine caused J1 to have a black eye. He explained the injury to Mother by saying
that the boy “‘has to learn not to run his mouth.’â€
Mother
and Jermaine were arrested and charged with willful cruelty to a child under
Penal Code section 273a. Jermaine was
also charged with willfully inflicting injury on a child under Penal Code
section 273d.
CFS
removed the children from Mother’s custody and filed juvenile dependency petitions
concerning the children pursuant to section 300. The court ordered them detained and placed
them in CFS custody on August 26, 2011.
In
the dependency petitions, CFS alleged:
Mother allowed Jermaine to discipline the children, resulting in
physical injuries; Mother had a prior dependency arising from a physical injury
to a child; and the children’s father’s whereabouts were unknown and he does
not provide support for the children.
In
a report prepared for the jurisdictional/dispositional hearing, the social
worker described reports by the children of being hit, or “whooped,†by
Jermaine on numerous occasions. Medical
examinations revealed marks and scars indicating physical abuse and neglect. The social worker concluded that the children
suffered injuries because of Jermaine’s “extreme discipline†and Mother’s “lack
of protection.†The social worker also
noted that Mother received family reunification services in the prior
dependency case, “but does not appear to have benefited from services.â€
C.
Mother’s
fourth child, D.B., was born in October 2011.
Five days after his birth, CFS filed a dependency petition concerning
him. The petition was based, in part, on
the allegations of physical abuse inflicted on J1, J2, and J3. CFS further alleged that Mother was unable to
provide support for the child because she was in jail.
On
October 26, 2011, CFS filed amended dependency petitions as to J1, J2, and J3. The amended petitions included allegations
that Mother allowed Jermaine to physically abuse the children and caused them
severe physical injuries. In a report
for the jurisdictional/dispositional hearing on the amended petitions, CFS
recommended that reunification services not be offered to Mother.
On
October 31, 2011, five-year-old J2 told a social worker that on five occasions Jermaine
put his hand inside the child’s underwear and touched her “pee-pee.†The social worker asked J2 if she had told
Mother about this. J2 said she told
Mother that Jermaine “was ‘digging in my panties,’†and that Mother responded
by asking, “‘Why you in trouble?’†In a
subsequent interview, J2 said that Jermaine “‘digs’ in her panties and ‘shakes’
his hand in her panties.†She said that
Mother was aware that Jermaine “had been ‘digging’ in her panties.†She said Mother told Jermaine to stop, and
told J2 to tell Jermaine to stop. Mother
and Jermaine denied any sexual abuse.
On
December 8, 2011, CFS filed second amended juvenile dependency petitions as to J1, J2,
and J3, and a first amended juvenile dependency petition as to D.B. that added
allegations that Jermaine had sexually abused J2 and that Mother failed to
protect the child from such abuse.
Mother
was released from jail on December 16, 2011.
D.
At
a jurisdictional hearing for all four children, the court found the allegations
of the amended petitions true (with the exception of one allegation not
relevant here).
At
a contested dispositional hearing held in February 2012, Mother testified that
upon release from jail she “went straight to [her] social worker†and began
participating in programs concerning domestic violence, anger management, and
parenting skills. She also began weekly
two-hour visits with the children, which went well. She terminated her relationship with
Jermaine.
At
the conclusion of the hearing, the court denied reunification services for the
parents and set a hearing to be held pursuant to section 366.26. The court explained that Mother “has not
learned from the services that were offered previously in 2008.†Furthermore, the court found that Mother is
“in denial†and has failed “to truly recognize the significance of†the
physical and sexual abuse committed against the children.
Mother
thereafter visited the children consistently once each month. The three older children were excited to see
her and ran to her for hugs and kisses.
The infant D.B. did not appear to recognize Mother, but did warm up to
her during the visit. The foster mother
reports that “the visits tend to go well.â€
In
June 2012, a prospective adoptive home was identified for the four
children. The prospective adoptive
parents were familiar with the children prior to the removal of the children
from Mother. When they learned the
children were in foster care, they requested the children be placed with them
and, after they were approved by CFS, became “excited about adoptingâ€
them. According to the social worker,
the “children refer to the prospective adoptive parents as ‘mom’ and ‘dad’ and
respond to them as parental figures.â€
E.
Parental Rights
Mother
filed a section 388 petition in September 2012.
She requested that the children be returned to her care and custody or,
in the alternative, that reunification services be provided to her and
visitation liberalized to include unsupervised overnight and weekend
visits. The petition was signed by
Mother’s attorney, and supported by the attorney’s declaration.
The
attorney stated: “[M]other visits her
children regularly. Her children call
her, ‘mommy’ and tell her they want to come home. She has a stable income and place to
live. She is attending the A Better Way domestic violence program. She is compliant with the terms of her
probation and is attending a 52 week parenting class and counseling as
conditions. She is also attending the
Nurturing Parent Program and case management program at Moses
House. . . . [¶] . . . She has demonstrated through
her hard work and commitment that it is in her children’s best interest to
grant her request.â€
Attached
to the 388 petition were documents evidencing the following:
1. A statement from the Social Security
Administration dated January 31, 2012, indicating a payment to Mother for the
month of February 2012 in the amount of $768.96;
2. A letter from an individual stating that
Mother lives with her, pays her $300 rent per month, “keeps to herself,†and
helps in the household;
3. A record of her class attendances in “A
Better Way,†a domestic violence and rehabilitation program, showing dates of
attendance in January, May, June, July, and August 2012;
4. A letter from the program director for the
Moses House Ministries “Nurturing Parenting Programâ€; among other favorable
comments, the director stated that Mother “has shown strong improvements in the
areas of nurturing activities,†“has secured safe and stable housing,†is “in
the process of pursuing her own place of residence for herself and her
children,†and is enrolling in a GED preparation course;
5. A letter from a “Parenting Educator†with
Moses House stating that Mother had enrolled in Moses House’s “Nurturing
Parenting Programâ€; and
6. A class syllabus for a “52 Weeks Parenting
Class.â€
The
court ordered a hearing on the request “because the best interest of the child
may be promoted by the request.â€
CFS
filed a written response to the 388 petition.
After summarizing Mother’s history with CFS, the social worker
stated: “[Mother] does not appear to
have a clear understanding of her responsibility to protect her children. CFS has been involved on two separate
occasions due to severe, unexplained injuries to child [J3]. In addition, she knowingly allowed her
children to be physically abused by her boyfriend, [Jermaine]. [Mother] received services the first time the
children became involved with CFS. It
does not appear that she benefitted from the services even though she stated
she was going to keep her children safe from harm after the first CFS involvement. [Mother] has provided information regarding
current enrollment in programs that she already took through CFS when she
received services through CFS previously.
She has provided information that she is currently enrolled in some
programs but has not completed any of them.
In addition, she was referred to the same services at the beginning of
the current case.â€
A
hearing was held to determine whether Mother had made a prima facie showing for
relief under section 388. Mother
submitted a certificate of completion of the first of the three-part Moses
House Nurturing Parenting course.
Following the argument of counsel, the court found that Mother had
failed to make the requisite showing and denied the request for an evidentiary
hearing on the section 388 petition.
The
court acknowledged Mother’s participation in various programs, but noted that
the section 388 petition did “not address . . . the physical and
sexual abuse of [J2] and [J3].†The
court noted further that this is the second dependency case concerning these
children and that the section 388 petition was not supported by any report from
a therapist, counselor, or program director describing any progress made by
Mother or any change of circumstances.
Finally, the court found that the requested change would not be in the
best interests of the children.
After
the court ruled on the section 388 petition, it held the section 366.26
hearing. Mother offered no affirmative
evidence. After the introduction into
evidence of certain reports and the argument of counsel, the court selected
adoption as the permanent plan and terminated parental rights.
II. DISCUSSION
Section
388 allows a parent of a dependent child to petition the juvenile court to
change, modify, or set aside any previous order of the juvenile court. The statute “‘provides a means for the court
to address a legitimate change of circumstances’ and affords a parent her [or
him] final opportunity to reinstate reunification services before the issue of
custody is finally resolved. [Citation.] Section 388 is central to the
constitutionality of the dependency scheme.
[Citation.]†(
1497, 1506.)
In order to prevail on a section 388
petition, the parent “must establish that new evidence or changed circumstances
exist so that the proposed change in the court’s order would promote the best
interests of the child.†(
635, 641-642.) When it appears from the
petition that the best interests of the child “may†be promoted by the proposed
modifications, the court “shall†order a hearing on the petition. (§ 388, subd. (d).)
Although courts will construe a
petition liberally in favor of granting a hearing (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414;
309), the court may summarily deny a section 388 petition without a full
evidentiary hearing if the petitioner fails to make a prima facie showing of
both elements (Cal. Rules of Court, rule 5.570(d); In re Marcelo B., supra, 209 Cal.App.4th at p. 642;
246, 250). “A ‘prima facie’ showing
refers to those facts which will sustain a favorable decision if the evidence
submitted in support of the allegations . . . is credited.†(In re
Edward H. (1996) 43 Cal.App.4th 584, 593, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719,
fn. 6.) “In determining whether the
petition makes the necessary showing, the court may consider the entire factual
and procedural history of the case.
[Citation.]†(
247, 258.)
We review a juvenile court’s summary
denial of a section 388 petition for abuse of discretion. (In re
Angel B. (2002) 97 Cal.App.4th 454, 460.)
If the petition fails to make the required prima facie showing, summary
denial of the petition without a hearing does not violate the petitioner’s due
process rights. (Id. at pp. 460-461.)
Here, the court did not abuse its
discretion in denying Mother’s section 388 petition without a full evidentiary
hearing. The section 388 petition
indicates that Mother has received money from the Social Security
Administration and has a place to live.
She is also participating in certain parenting and
these are the same types of “programs that she already took through CFS when
she received services†in the 2008 dependency proceedings. More importantly, as the court noted, the
section 388 petition and its supporting evidence do not indicate that Mother
has successfully addressed the concerns that gave rise to the current
dependency case. The three children in
her care suffered physical abuse and at least one suffered sexual abuse. Such abuse occurred despite the completion of
services she received in the 2008 dependency case and her knowledge that it was
occurring. Although the program director
of Moses House notes Mother’s “improvement’s in the areas of nurturing
activities†and “in her understanding of developmental milestones and age
appropriated [sic] activities and
discipline,†there is no report addressing any progress or change with respect
to her failure to protect her children from physical and sexual abuse. The court’s finding that Mother failed to
make a prima facie showing as to a change in circumstances is thus reasonable
and within the scope of its discretion.
The court could also reasonably
find, as it did, that the section 388 petition failed to establish a prima facie
showing that the requested change would be in the best interests of the
children. The children are together and
in the care of prospective adoptive parents who they refer to as “mom†and “dad.†The court’s determination that the children’s
best interests would not be promoted by disrupting the stability that now
exists in their lives by granting the section 388 petition is not an abuse of
discretion.
We
therefore reject Mother’s arguments and affirm the trial court’s orders.
III. DISPOSITION
The orders appealed from are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
