Filed 7/9/14 In re J.R. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
In re J.R., a Person Coming Under the B251443
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK82796)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Amy M. Pellman, Judge. Affirmed.
Julie E. Braden, under appointment by the Court of Appeal, for Appellant.
Amir Pichvai for Respondent.
__________________________
Father C.R. appeals from the trial court’s summary denial of his Welfare and
Institutions Code section 388 petition.1 We affirm because the court did not abuse its
discretion by not holding a hearing on the petition.
FACTS AND PROCEEDINGS
In June 2010, respondent Department of Family and Children Services (DCFS)
filed a petition under section 300 against appellant father C.R. and mother – who is not a
party to this appeal – regarding their minor children, J.R. born in 2003, and then three-
month old M.R. born in 2010. The petition alleged father and mother had failed to
protect and provide regular care to the children which placed the children at risk of harm.
In particular, father had accidentally scratched J.R.’s face in administering inappropriate
discipline; father had a history of alcohol abuse, which periodically rendered him unable
to provide regular care and supervision; father had a history of convictions for possession
of controlled substances which created a detrimental home environment; mother had
untreated “mental health issues” which limited her ability to provide for the children’s
regular care and supervision; and, father and mother had a history of domestic violence.
Based on the petition’s allegations, the court detained the children and placed them in
foster care.
In October 2010, father submitted on the petition and the court sustained the
petition’s allegations. The court ordered family reunification services and directed father
to participate in parenting, alcohol, drug, and domestic violence counseling, and to
submit to random drug and alcohol testing. The court further ordered monitored
visitation for father of at least three times a week, and granted DCFS discretion to
increase the number and length of visits. In succeeding months, DCFS received
favorable reports from father’s counselors on his program compliance and progress. In
January 2011, the court increased father’s visitation.
1 All future undesignated statutory references are to the Welfare and Institutions
Code.
2
In November 2011, DCFS recommended that the court return the children to
father’s home with Family Maintenance Services and that the court terminate mother’s
reunification services. Accordingly, the court ordered the children’s return to father upon
his arranging proper childcare for them while he was at work, and further ordered that
DCFS could make unannounced visits to father’s home. The court terminated mother’s
reunification services. In August 2012, based on father’s continued progress, DCFS
recommended termination of jurisdiction and the children’s permanent placement with
father, who would receive sole legal and physical custody.
On December 7, 2012, father was arrested by the California Highway Patrol for
driving under the influence. Two days later on December 9, Azusa city police officers
also arrested father for driving under the influence. When the Azusa police stopped
father, they found then two-and-a-half year old M.R. lying in the back seat wrapped in a
blanket unrestrained by a car seat. Father thereafter tested positive for opiates, codeine,
morphine, and alcohol.
DCFS filed a supplemental petition under section 387. The petition alleged father
had been under the influence of alcohol and prescription medication when Azusa police
arrested him, which had hindered his ability to take care of M.R. The children were
detained and placed in foster care. The court ordered monitored visitation for father and
ordered that he submit to random drug and alcohol tests.
In February 2013, the court sustained the supplemental petition after father
pleaded no contest to its allegations. DCFS recommended no reunification services for
father because he had already received more than 18 months of reunification services,
and his arrest by Azusa police two months earlier in December involved one of the same
problems – substance abuse – that had brought father and children to the attention of
DCFS. The court ordered visitation for father and set a selection and implementation
hearing under section 366.26 for the children’s permanent plan.
The section 366.26 hearing began in June 2013. The children were by then living
in the home of prospective adoptive parents, who had already begun adoption
proceedings for the children’s half-sibling. Ten-year-old J.R. wished, however, to
3
maintain a relationship with father and opposed being adopted. To permit DCFS to
reconsider its permanent plan for J.R., the court continued the hearing to August 15,
2013, and reduced father’s visitation to once a month.
On August 15, 2013, father filed in conjunction with the 366.26 implementation
hearing a petition under section 388 requesting modification of the court’s placement
order. Father was not in the courtroom during the hearing because, according to his
counsel, he had suffered an undefined medical event sending him to the emergency room.
Father’s 388 petition alleged changed circumstances meant that modification of
the placement order served the children’s best interests. He cited as changed
circumstances his enrollment in a substance abuse program in November 2012 several
weeks before his DUI arrests, and his compliance with the program’s rules and periods of
sobriety; his enrollment in a parenting class; his attendance at AA/NA meetings three to
four times a week; and, his pairing with a sobriety sponsor.
In support of his petition, father attached two letters. The first was dated two
months earlier on June 12, 2013, from Azusa Medical and Mental Health. It confirmed
father’s enrollment in its substance abuse program since November 2012. The letter
stated father “complies with all program rules and continues to be motivated in his
sobriety. [Father] has shown progress in learning relapse prevention skills and life-skills.
[Father] continues to test illicit drug free and is motivated to make changes to continue
his abstinence.” The second letter was from the National Council on Alcoholism and
Drug Dependence. It confirmed he had enrolled the previous day in that organization’s
parenting program.
Based on the foregoing allegations of changed circumstances, father’s petition
requested that the court modify its placement order to either place the children in his
home, or, alternatively, establish a schedule of monitored or unmonitored visitation with
discretion to liberalize. Father’s petition asserted the proposed modifications were in the
children’s bests interests because he had been taking steps to remedy the problems that
had brought him and his children to the attention of DCFS, and that his visitation with the
4
children, which included almost daily phone calls with J.R., was “consistent” and of high
quality.
The court summarily denied father’s 388 petition without a hearing because the
petition did not state new evidence or a change in circumstances that made it in the
children’s best interests to modify the placement order. Because father was not at the
hearing, the court continued the 366.26 implementation hearing to November. This
appeal followed.
DISCUSSION
Section 388 permits a parent to petition the juvenile court to change a previous
order when the change would be in a child’s best interests.2 For a petition to succeed, the
parent must present new evidence or circumstances that justify modifying a court’s prior
order. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228; In re Zachary G. (1999)
77 Cal.App.4th 799, 806-807 (Zachary).) In deciding whether to hold a full hearing on a
section 388 petition, the juvenile court may choose to summarily deny the petition
without a hearing if the court finds that the “petition . . . fails to state a change of
circumstances or new evidence that may require a change of order or termination of
jurisdiction or, that the requested modification would promote the best interest of the
child.” (Cal. Rules of Court, rule 5.570(d).) On the other hand, if the petition states a
prima facie case for relief, the court shall conduct a hearing. (§ 388, subd. (d).) Courts
must construe a section 388 petition liberally in favor of granting a hearing. (Cal. Rules
of Court, rule 5.570.) “If the petition presents any evidence that a hearing would promote
the best interests of the child, the court must order the hearing.” (In re Angel B. (2002)
97 Cal.App.4th 454, 461, italics in original.) We review a juvenile court’s ruling denying
2 Section 388, subdivision (a) provides: “Any . . . 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 in the same action in which the child
was found to be a dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made . . . .”
5
a section 388 petition under the deferential abuse of discretion standard. (In re A.A.
(2012) 203 Cal.App.4th 597, 612; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Father contends the trial court abused its discretion by denying him a hearing
because he had presented a prima facie case of changed circumstances or new evidence
that demonstrated modification of the placement order would serve the children’s best
interests. (Zachary, supra, 77 Cal.App.4th at p. 808; In re Jamson O. (1994) 8 Cal.4th
398, 415.) In support, father compares his circumstances to those of In re Aaliyah R.
(2006) 136 Cal.App.4th 437. According to father, Aaliyah R. shows he met the minimal
burden needed to establish his right to a hearing. In Aaliyah R., the mother, who was
only 15 years old and had been adjudicated a dependent child herself, exhibited long
periods of unstable behavior injurious to her child, including neglect and refusal to care
for her. (Id. at p. 447.) Father’s reliance on Aaliyah R. is to no avail. Granted, he has
been more diligent and attentive a parent than in Aaliyah R., but the holding in Aaliyah R.
was that the trial court did not err in denying a hearing on mother’s 388 petition. The fact
that father is arguably a better parent than the teenaged mother in Aaliyah R. does not
mean, however, that the trial court erred in finding that his 388 petition did not meet a
prima facie threshold of sufficiently changed circumstances or new evidence warranting
modification of the court’s placement order. Father’s enrollment in the substance abuse
program at Azusa Medical and Mental Health in November 2012 predated his December
2012 arrests and the court’s February 2013 placement order, and therefore was not “new”
evidence. And his enrollment in the parenting class at the National Council on
Alcoholism and Drug Dependence the day before he filed his 388 petition was so recent
that the court was justified in giving it little weight.
Father’s reliance on In re Casey D. (1999) 70 Cal.App.4th 38, is also unavailing.
There the mother filed a 388 petition just before the permanency planning hearing in
which she alleged changed circumstances. The trial court denied a hearing on the
petition, which the appellate court found was not abuse of discretion. The decision noted
that although the mother was loving toward her 16-month-old child and behaved
appropriately toward her, mother had been drug-free for only a few months and showed a
6
pattern of cooperating in drug treatment only when required to do so by outside agencies,
leading the social worker to conclude there was risk of detriment in returning child to
mother’s custody. Father appears to cite Casey D. for the proposition that a court errs in
denying a hearing on a 388 petition if the hearing will not delay implementation of a
permanent plan. (Id. at p. 47.) Father cites the following sentence from Casey D. in
support. “A petition which alleges merely changing circumstances and would mean
delaying the selection of a permanent home for a child to see if a parent, who has
repeatedly failed to reunify with the child, might be able to reunify at some future point,
does not promote stability for the child or the child's best interests.” Father may be
reading too much into that language. Casey D. did not hold that no delay means an
automatic right to a hearing. Instead, it reasoned that delaying implementation of a
permanent plan is usually not in a child’s best interests. We agree, but the fact that the
court could have held a hearing on appellant’s petition without delaying the permanent
plan hearing, which the court was continuing for reasons unrelated to the section 388
petition, does not mean the court erred in not holding such a hearing.
DISPOSITION
The trial court’s order summarily denying father’s 388 petition is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.
7