Filed 12/31/14 In re Jamie S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JAMIE S., et al., Persons Coming
Under the Juvenile Court Law.
D066066
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J51746 C & D)
Plaintiff and Respondent,
v.
SANDRA R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
William Hook, under appointment of the Court of Appeal, for the Minors.
After a lengthy evidentiary hearing, the juvenile court granted D.S.'s petition for
modification (Welf. & Inst. Code, § 388)1 to terminate Sandra R.'s guardianship over
D.S.'s children, Jamie and Elijah S., based on Sandra's physical abuse of children in her
care and chronic marijuana use. Sandra contends the court erred by considering the
petition because In re Jessica C. (2007) 151 Cal.App.4th 474 (Jessica C.), establishes
that section 387 sets forth the exclusive procedure when the termination of a guardianship
may result in the children being detained in foster care. She asserts she was prejudiced
because under section 388 "less specific and less stringent standards are used in deciding
whether removal is warranted." Sandra also contends D.S. did not adduce "new
evidence," as that term is defined in In re H.S. (2010) 188 Cal.App.4th 103, 105 (H.S.), to
support a section 388 petition, because her knowledge of Sandra's physical abuse
predated establishment of the guardianship. We affirm the order terminating the
guardianship.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2009, the San Diego County Health and Human Services Agency (the
Agency) filed amended petitions on behalf of Jamie, then five years of age, and Elijah,
then three years of age, under section 300, subdivisions (b) and (j). The petitions alleged
the children's father, James S., was mentally ill and attempted suicide by overdosing on
prescription medications; he admitted using illicit drugs in the children's presence; he
1 Future statutory references are to the Welfare and Institutions Code.
2
sexually abused the children's half-sister; and D.S. had a history of alcohol and drug
abuse and drug-related offenses.2 The children were placed in foster care.
D.S.'s service plan included a psychological evaluation, therapy, SARMS
(Substance Abuse Recovery Management System program), parenting classes, and
supervised visitation. At the six-month review hearing, the court continued her services.
At the 12-month review hearing, the court followed the Agency's recommendation to
terminate services and schedule a section 366.26 hearing. D.S. had made some progress
on her case plan, but she continued to have contact with James and placed her own needs
above those of her children. Shortly thereafter, she was incarcerated on a drug charge.
In December 2010, Jamie and Elijah went to Ohio to visit Sandra, their maternal
great aunt. Sandra was the adoptive mother of six siblings, and the legal guardian of a
niece's two children. An expedited report under the Interstate Compact on the Placement
of Children (ICPC) was ordered for potential placement with Sandra, and the Agency
obtained a continuance of the section 366.26 hearing to consider placement options.
Sandra received a positive ICPC report, and in April 2011, the court placed Jamie
and Elijah with her. She wished to be their legal guardian, and the Agency obtained
another continuance of the section 366.26 hearing to further assess the permanent plan.
A contested section 366.26 hearing was held over two days in February and March
2012. The court found by clear and convincing evidence that Jamie and Elijah were
2 The Agency also filed petitions on behalf of D.S.'s two older children, but they are
not involved in this appeal. James S. is also not involved in this appeal. He was
convicted of several sex crimes and received a lengthy sentence.
3
likely to be adopted, but they were living with a relative who was unable or unwilling to
adopt them. The court followed the Agency's recommendation to appoint Sandra as their
guardian and terminate jurisdiction. As a matter of courtesy, a social worker in Ohio had
visited the children and reported they were happy and doing well.
Sandra later decided she wanted to adopt the children, and the Agency was in
accord. In May 2013, the Agency filed a petition for modification (§ 388) requesting
termination of the guardianship, reinstatement of jurisdiction, and the scheduling of a
permanency planning hearing (§ 366.26) to facilitate adoption. The court resumed
jurisdiction and scheduled a section 366.26 hearing for late October 2013.
In early October 2013, D.S. filed a petition for modification (§ 388) requesting
termination of the guardianship and return of the children to her custody. The petition
alleged D.S. had maintained her sobriety for nearly three years, reentered therapy,
regained custody of her two older children, and given birth to a daughter who was placed
in her custody. It also alleged "there are allegations of rather severe and extensive
abuse . . . by [Sandra] towards the children in her care." D.S. attached several exhibits to
the petition, three of which pertained to Sandra's conduct.
The court found D.S. made a prima facie showing as to termination of Sandra's
guardianship, but not as to return of the children to D.S. In January 2014, D.S. filed a
second petition for modification requesting the same relief. The court determined she
made a prima facie showing on the custody issue, and it granted her request to combine
the section 388 and 366.26 hearings.
4
A 15-day hearing was held in March and April 2014, in which the court
considered whether to remove Jamie and Elijah from Sandra's care. D.S. presented
several witnesses.3 Mitchell testified he moved to Sandra's home when he was around 10
years of age and stayed there several years. During the last months of his stay, Jamie and
Elijah were living there. Mitchell saw Sandra smoke marijuana seven or eight times a
week. She would remove the tobacco from a "Black and Mild" cigar, replace it with
marijuana, light the tip and "take a puff." Sandra's husband did not allow smoking in the
house, and she would smoke when she was in the garage with a friend, or when she took
Mitchell with her to run errands. She commonly smoked marijuana before driving with
him in the car, and he was present when she purchased marijuana.
Additionally, Mitchell testified Sandra had strict rules. For instance, she never
allowed the children in the living room, or in the kitchen or the yard if she was not home.
If anyone broke a rule, there would be punishment. When Mitchell first arrived, she used
grounding for discipline. However, "as the social worker started appearing less and less,"
punishment became more severe. Sandra made the children squat, meaning "you are
basically sitting down without a chair behind you." She did this "a lot." If they stood up
before she gave permission, she "would whoop us," meaning she "would make us take off
our pants and lay across the bed, and she would hit us across our bottoms with a belt." If
a child fell over before time was up, she "would make you start over."
3 The record is somewhat unclear on the number of children living with Sandra
when Jamie and Elijah arrived. It appears the household included five of Sandra's
adopted children, including Frederick, and her niece's children, Mitchell and Michell H.,
all of whom were minors.
5
Sandra forced Mitchell to squat "tons of times," for up to an hour, which caused
"extreme pain." He got whoopings on a weekly basis. If he covered his bottom, she
would strike his back. He and Frederick showed belt marks on their backs to a school
counselor, and when they got home Sandra "whooped us again." Mitchell objected to
Sandra calling his mother a whore, and she punched him in the chest "as hard as she
could" and gave him "a big black bruise." Sandra rubbed "aloe vera gel" on the bruise.
She punched him in the chest another time as well. If a child had bruises, Sandra would
not allow him or her to go to school "[u]ntil they were barely noticeable or cleared up."
After Mitchell told his mother about the abuse, Sandra restricted his telephone access to
his mother.
Mitchell's sister, Michell, testified she lived with Sandra for about seven years.
Sandra smoked marijuana "like four times a day," in front of "[a]ll the kids," in the
basement, in the garage, and in the car. Sandra would "roll up the weed in a [brown]
shell, and smoke it." A "shell" had tobacco in it, and Sandra would "pour it out" and
"[p]ut the weed in." She sometimes smoked while she was driving, but she would
usually "pull over and smoke it." Once when Michell, Jamie, and Elijah were in the car,
she pulled over and told them to get out. When they returned, the car "smelled like weed,
and it was really strong." Sandra took Michell and Jamie to a man's house where the
adults smoked marijuana. Sandra purchased marijuana when Michell was in the car.
Additionally, Michell testified that several times when Sandra had a job interview,
"she would need pee for it," and she used the urine of Michell, Jamie and other female
members of the household. Sandra told Michell "they could tell . . . if it was a boy's pee
6
or a girl's pee." Michell explained Sandra "would tell us to pee in a cup," and she put the
urine in a condom and hid it in her bra.
When Michell moved to Sandra's home, she saw her hit other children and make
them squat. After a couple of months, Sandra began treating Michell and Mitchell the
same way. Michell explained, "You had to squat, and you had to stay there until she tells
you to move. If you move before then or sit down, she whoops you with an extension
cord for hours. . . . She would specifically tell you to go get an extension cord, and she
would whoop you with it. . . . [I]f you moved, and it hits your face, she'll say you
shouldn't have moved." Sometimes Sandra made Michell remove her clothes before a
whooping. Michell described whooping as being hit with "[b]elts, shoes, extension
cords, and anything else she could get her hands on."
Michell once squatted for more than three hours because Sandra "went to sleep."
Sandra accused Michell of moving and gave her a whooping. She also punched Michell
in the chest and gave her a bloody nose by punching her in the face. Sandra kept her
home from school "[b]ecause I would have bruises and [Sandra] didn't want [anyone] to
see them." When the children were bruised, Sandra would "rub us down with aloe vera
oil, or aloe vera gel." Michell counted at least 12 scars on her body that Sandra inflicted.
Michell also testified that Sandra hit Mitchell several times, including a hard
punch to the chest that made him fall. She hit Jamie in the face and called her a "piss pot"
after she wet the bed. She hit Jamie on her bare back. Jamie's back "turned red and [she]
dropped to the floor, and then she started crying." Sandra struck Jamie with a belt for
such things as "peeing on herself," "sitting outside when she was supposed to come
7
straight home from the bus," "playing in the house," "sitting on the bed," and "turning on
the T.V."
Sandra whooped Elijah "with his shirt off with a belt across his back." Sandra
slapped Elijah's face a couple of times and left a handprint. She slapped him because he
threw up in bed and "couldn't hold it until he went to the bathroom." She beat him with
an extension cord because he refused to eat and wasted food. Michell knew that
Frederick once reported abuse to his school, and a social worker came to the home.
Later, Sandra whooped him in front of the other children with a thick extension cord
when he was wearing only underwear.
In the late 1980's, Sandra was C.S.'s foster mother for about a year. C.S. was 14
years of age when she moved to Sandra's home. During the same period, Sandra's young
niece, A.M., moved in, along with A.M.'s younger sister. C.S. observed Sandra smoking
marijuana and she frequently smelled it in the home. C.S. testified she got into trouble
with Sandra, "probably because of my mouth." Sandra "socked" C.S. several times in the
chest with "a balled fist," and she cried because of the pain. Sandra whooped the other
girls many times with a leather belt when they wore only underwear, and the beatings left
welts on their skin.
A.M. testified that Sandra smoked marijuana in the home "[a] couple times a day."
A.M. often saw Sandra slap C.S. or punch her in the chest, and she once choked C.S.
A.M. did not recall Sandra physically abusing her when she was younger, but after she
moved with Sandra to Chicago when she was 10 or 11, "it was just brutal." As A.M. got
older, the abuse got worse. A.M. said Sandra was "[r]eally strict, . . . I was on egg shells.
8
I didn't know if . . . I blinked too much if I would get disciplined, meaning slapped in the
mouth, whooped to the point where I had welts and bruises, verbal abuse, slapped up side
[sic] the head, whatever she felt like doing . . . at that time." Sandra split her lip after she
got a treat out of the freezer without permission. If A.M. had injuries, Sandra kept her
out of school. A.M. has a scar on the back of her leg from being "whooped with a belt
that had spikes on it." Sandra slapped A.M.'s sister in the mouth and with a wooden
paddle.
The Agency recommended that Jamie and Elijah remain with Sandra. It pointed
out that they denied any physical abuse, and it argued that if Sandra used marijuana "this
is something that could be ameliorated without removing the children from the home."
The children's counsel argued for their immediate removal from Sandra's custody.
On April 11, 2014, the court ordered the immediate removal of Jamie and Elijah
from Sandra's custody. It found by clear and convincing evidence there was a change of
circumstances and removal would be in the children's best interests, based on "substantial
risk of physical abuse and exposure to drugs." The court recited a thorough explanation
for its ruling. The court noted that when it established the guardianship, "it was
completely unknown to the court that . . . Sandra . . . had a long-term history of abusing
children, employing extreme physical abuse, not only directly on children, but in the
presence of other children causing extreme fear to them." The court explained in detail
why it found the testimony of D.S.'s witnesses credible and persuasive, and the testimony
of Sandra's witnesses that no physical discipline or marijuana use ever occurred not
credible.
9
On May 29, 2014, the court issued an order granting D.S.'s section 388 petition in
part. The court terminated Sandra's guardianship and found it would not be in the
children's best interests to provide her with reunification services. D.S. withdrew the
portion of her section 388 petition requesting custody of Jamie and Elijah. The children
were in foster care, and the court gave the Agency discretion to place them with a
nonrelative extended family member. The court scheduled a section 366.26 hearing for
July.
DISCUSSION4
I
Use of Section 388 Petition
A
Sandra contends the court erred by using section 388 to terminate her
guardianship. She asserts that section 387 sets forth the exclusive procedure for the
termination of a guardianship when there is any potential the children may be detained in
foster care. The applicability of a statute presents a question of law we review
independently. (In re Lana S. (2012) 207 Cal.App.4th 94, 108.)
An application to terminate a guardianship created by the juvenile court is
ordinarily governed by section 388. (In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418;
In re Carrie W. (2003) 110 Cal.App.4th 746, 757; § 360.) Section 388 provides in part:
"Any parent or other person having an interest in a child who is a dependent child of the
4 Jamie and Elijah, through their appellate counsel, join in the in the Agency's
positions on appeal.
10
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
. . . for a hearing to change, modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court." (§ 388, subd. (a)(1), italics added.) "Because the
statute states 'any' order, we presume the Legislature intended to permit liberal use of this
procedure to challenge all types of orders in an ongoing case, including custody and
placement orders." (In re Victoria C. (2002) 100 Cal.App.4th 536, 543 (Victoria C.).)
A parent seeking termination of a guardianship and return of the children is not
required to show any wrongdoing on the guardian's part. (In re Michael D. (1996) 51
Cal.App.4th 1074, 1086.) "[T]he thrust of the legislative scheme is to encourage parents
to correct earlier problems so as to reunite them with their children. [Citations.] This
intent would be thwarted if parents lost all ability to regain custody of their dependent
minors, despite rehabilitation and despite having corrected earlier problems, if parents
whose rights had not been terminated could only regain custody by proving the minors
suffered harm in their current living situation." (Ibid.)
A petition to terminate a guardianship under section 388 is subject to the
procedure described in California Rules of Court,5 rule 5.570, "and Request to Change
Court Order (form JV-180) must be used." (Rule 5.740(c).) The moving party has the
burden of proof (Rule 5.570(h)(1)) and, with exceptions inapplicable here, "requests
5 Future rule references are to the California Rules of Court.
11
require a preponderance of the evidence to show that the child's welfare requires such a
modification." (Rule 5.570(h)(1)(C).)
D.S. properly used form JV-180 to petition for termination of Sandra's
guardianship and return of Jamie and Elijah to her custody. The court terminated the
guardianship, but D.S. ultimately withdrew her request for custody and the court detained
the children in foster care pending a permanency planning hearing. Sandra contends that
because of the foster care component, a section 387 proceeding was required.
Section 387 provides in part:
"(a) An order changing or modifying a previous order by removing a child from
the physical custody of a parent, guardian, relative, or friend and directing
placement in a foster home, or commitment to a private or county institution, shall
be made only after noticed hearing upon a supplemental petition.
"(b) The supplemental petition shall be filed by the social worker in the original
matter and shall contain a concise statement of the facts sufficient to support the
conclusion that the previous disposition has not been effective in the rehabilitation
or protection of the child or, in the case of a placement with a relative, sufficient to
show that the placement is not appropriate in view of the criteria in Section
361.3." (Italics added.)
" 'Supplemental' petitions [under section 387] are filed if the social worker
determines the previous disposition order has not been effective and it is necessary to
remove 'the child from the physical custody of a parent, guardian, relative, or friend and
direct[] placement in a foster home, or commitment to a private or county institution. . . .'
[Citations.] In each instance, the social worker initiates proceedings by the filing of a
petition." (Victoria C., supra, 100 Cal.App.4th at pp. 542-543.)
In a section 387 proceeding, "the court applies the procedures and protections of
section 361." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) "In proceedings on a
12
supplemental petition, a bifurcated hearing is required. [Citations.] In the first phase of a
section 387 proceeding, the court must follow the procedures relating to a jurisdictional
hearing on a section 300 petition . . . . [Citation.] At the conclusion of this so-called
'jurisdictional phase' of the section 387 hearing [citation], the juvenile court is required to
make findings whether: (1) the factual allegation of the supplemental petition are or are
not true; and (2) the allegations that the previous disposition has not been effective in
protecting the child is, or is not, true. [Citation.] If both allegations are found to be true,
a separate 'dispositional' hearing must be conducted under the procedures applicable to
the original disposition hearing." (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)
Sandra relies on Jessica C., supra, 151 Cal.App.4th 474. The issue in Jessica C.,
however, was whether section 387 or section 388 applied to the child protective agency's
petition to terminate a grandfather's guardianship, because of his declining health and the
grandmother's death, and place the children in foster care. Jessica C. held that
"[a]lthough the statutory scheme allows for using section 388 to seek termination of a
guardianship established as a permanent plan (§ 366.3, subd. (b)), section 387 is the
appropriate procedural mechanism if the termination will result in foster care." (Jessica
C., at p. 482.)6
6 Jessica C. explained: "The legislative policy in California is that foster care
should only be used as a temporary method of care. [Citation.] In addition, reunification
with the natural parents or another alternative permanent living situation such as adoption
or guardianship is more suitable to a child's well-being than is foster care. [Citation.]
We believe it is for this reason that the Legislature established a more structured
procedure when efforts are made to terminate a guardianship in favor of foster care.
Consequently, the decision to remove a dependent child from the home of a relative
13
" '[I]f the statutory language is not ambiguous, then we presume the Legislature
meant what it said, and the plain meaning of the language governs.' " (In re Austin P.
(2004) 118 Cal.App.4th 1124, 1129.) "[W]e do not rewrite the clear language of [a]
statute to broaden the statute's application." (In re David (2012) 202 Cal.App.4th 675,
682.) The language of section 387 is unambiguous, and Sandra does not contend
otherwise. Her trial counsel conceded that only a social worker may file a supplemental
petition under section 387.
The court rejected the notion that only the Agency could petition for termination
of Sandra's guardianship, noting "sometimes the Agency is just flat out wrong." In
determining it could proceed under section 388, the court relied on Victoria C., in which
the father filed a section 388 petition to seek removal of the minor from the mother's
custody. The father did not request custody, and presumably there was a potential for
foster care placement. County counsel opposed the petition on the ground only the social
worker could petition for removal, under section 387, and the juvenile court agreed.
(Victoria C., supra, 100 Cal.App.4th at p. 541.)
On appeal, county counsel changed its position and agreed the juvenile court erred
by summarily dismissing the section 388 petition. (Victoria C., supra, 100 Cal.App.4th
at p. 542.) The appellate court concluded a section 388 petition "was an appropriate
procedural vehicle to seek removal of the minor from the mother's custody, and the
juvenile court erred by concluding otherwise." (Id. at p. 543.) Victoria C. explains: "[A]
caretaker who has assumed the role of de facto parent for several years cannot be made
lightly." (Jessica C., supra, 151 Cal.App.4th at pp. 481-482.)
14
broad interpretation of the statutory language comports with the purpose of section 388.
[Citations.] It appears the only difference between a request for removal of a child from
a parental home and any other order is a more stringent burden of proof: a request for
removal from a parental home, or to a 'more restrictive placement,' requires clear and
convincing evidence that grounds for removal exist." (Ibid.) We find Victoria C.
persuasive.
We are also persuaded by rule 5.560(e), which provides: "A petition for
modification hearing [under section 388] may be filed by: [¶] (1) The probation officer,
the parent, the guardian, the child, the attorney for the child, or any other person having
an interest in a child who is a ward if the requested modification is not for a more
restrictive level of custody; [¶] (2) The social worker, regarding a child who is a
dependent, if the requested modification is not for a more restrictive level of custody; or
[¶] (3) The parent, guardian, the child, the attorney for the child, or any other person
having an interest in a child who is a dependent." (Italics added.)
" 'The usual rules of statutory construction are applicable to the interpretation of
the California Rules of Court.' " (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 265.)
" ' "Where a statute on a particular subject omits a particular provision, the inclusion of
such a provision in another statute concerning a related matter indicates an intent that the
provision is not applicable to the statute from which it was omitted." ' " (In re Gerald J.
(1991) 1 Cal.App.4th 1180, 1186.) The omission of the phrase "if the requested
modification is not for a more restrictive level of custody" from the third subsection of
rule 5.560(e) indicates that a parent may use section 388 to request a more restrictive
15
level of custody, such as foster care. We conclude the court properly considered D.S.'s
petitions for modification under section 388.
B
Sandra contends the use of section 388 was prejudicial because it "deprived [her]
of the more stringent standards for removal found in . . . section 387." She cites section
361, subdivision (c)(1), which applies in a section 387 proceeding, and prohibits the
removal of a child from his or her guardian unless it finds by clear and convincing
evidence that there are no reasonable means by which the child can be protected without
removal. She adds, "Section 388 imposes no requirement that a reasonable means
analysis be done as a condition of removal."
" 'When the trial court commits error in ruling on matters relating to pleadings,
procedures, or other preliminary matters, reversal can generally be predicated thereon
only if the appellant can show resulting prejudice, and the probability of a more favorable
outcome.' " (Buckner v. Milwaukee Electric Tool Corporation (2013) 222 Cal.App.4th
522, 539.) As discussed, the court did not err by proceeding under section 388. Further,
Sandra ignores that the court did undertake a reasonable means analysis and it applied a
heightened burden of proof. The court explained: "I have carefully thought [about]
whether the children can remain in the home[,] . . . while, for instance, [Sandra's] services
are being put in place, but I find that continued care in the home of the guardian is
contrary to the children's welfare. [¶] I am placing responsibility for detention out of
home with the . . . Agency, and I do find by clear and convincing evidence there are no
16
services today which would prevent the need for detention out of home." The outcome
would not have been more favorable in a section 387 proceeding.
Additionally, Sandra asserts she received inadequate notice because the section
388 petitions sought return of the children to D.S.'s custody rather than their placement in
foster care. She submits that she could not "reasonably anticipate" that Jamie and Elijah
might be detained in foster care. We are not persuaded. The petitions naturally put
Sandra on notice of the potential for foster care detainment should D.S. establish they
were at risk of harm in Sandra's home, but not establish they could be safely returned to
D.S.'s custody. Further, Sandra ignores that at an April 4, 2014, conference on
procedural matters, the court stated the section 388 petition "is in two parts. One is to
dissolve the guardianship, and the second is to place with mother." The court advised the
parties they "need to be ready" to discuss placement in the event the court were to remove
the children from Sandra's home before it considered D.S.'s custody request. The court
stated, "I assume that there may be an emergency issue that we will have to address. So
all the parties should be prepared."
"[D]ue process requires 'notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) The
court rejected the argument Sandra's due process rights were infringed, and we agree.
She had adequate notice and fully participated in the proceedings.
Sandra also asserts that instead of filing a section 388 petition, D.S. should have
enlisted the Agency's assistance under section 329. Section 329 provides in part:
17
"Whenever any person applies to the social worker to commence proceedings in the
juvenile court, the application shall be in the form of an affidavit alleging that there was
or is . . . a child within the provisions of Section 300, and setting forth facts in support
thereof. The social worker shall immediately investigate as he or she deems necessary to
determine whether proceedings in the juvenile court should be commenced."
Because D.S. properly moved under section 388, we need not consider whether
she had an additional remedy under section 329. (Victoria C., supra, 100 Cal.App.4th at
p. 545.) Further, a section 329 application would have been fruitless, because even after
the presentation of D.S.'s evidence the Agency argued the children should be left in
Sandra's care. The court explained a section 329 investigation would only cause needless
delay, as the "Agency has had ample time to confer and decide what its position would
be."
II
Changed Circumstances/New Evidence
Sandra also contends the court erred by finding changed circumstances or new
evidence sufficient to sustain a section 388 petition. "We review the grant or denial of a
petition for modification under section 388 for abuse of discretion." (In re B.D. (2008)
159 Cal.App.4th 1218, 1228.) " 'The appropriate test for abuse of discretion is whether
the trial court 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 Stephanie M (1994) 7 Cal.4th 295, 318-
319.)
18
Sandra asserts the court should not have considered the evidence of physical abuse
in determining whether there were changed circumstances, because D.S.'s petitions
alleged physical abuse only under the best interests prong. We disagree. Question seven
on the JV-180 form asked, "What changed after the judge's order that would change the
judge's mind? (Give new information that the judge did not have when the order was
made.)" D.S. responded, "SEE ATTACHED EXHIBITS." Three of the exhibits were
declarations that pertained to physical abuse. At a hearing on whether D.S.'s original
petition made a prima facie showing, Sandra's counsel conceded the exhibits "show a
change of circumstances as to whether the court should terminate the letters of
guardianship."7 The body of the petitions focused on D.S.'s situation, which is
understandable since she sought to regain custody of Jamie and Elijah.
Additionally, Sandra asserts D.S. "could not claim that Sandra's strict parenting
style, including the use of physical punishment, was new evidence to her." Sandra cites
H.S., supra, 188 Cal.App.4th 103, which held "the term 'new evidence' in section 388
means material evidence that, with due diligence, the party could not have presented at
the dependency proceeding at which the order, sought to be modified or set aside, was
entered." (Id. at p. 105.)
Sandra's guardianship was established in March 2012. She cites D.S.'s testimony
that she moved to Ohio in July 2011, and she stayed with Sandra for about two weeks.
Jamie told D.S. she "got a whooping for peeing in her bed," and Michell told D.S. that
7 The court's eventual exclusion of the exhibits is immaterial.
19
Sandra "busted her lip." D.S. was asked, "Do you know if any physical discipline was
occurring in [Sandra's] house before you went to go stay with her?" D.S. responded,
"Well, all of my life I have known my auntie, and I know that she hits kids
inappropriately. So to answer your question, yes. I did know that she was kind of
physically abusive, I just didn't know to what extent that she would go." (Italics added.)
D.S. added, "I just knew that . . . you have to walk a straight line with her."
Sandra claims D.S. could "have presented her allegation and evidence of physical
punishment at or before the dependency proceeding conducted when the guardianship
order was made." We conclude, however, that the testimony of Mitchell, Michell, C.S.
and A.M. regarding the types and extent of Sandra's physical abuse, including forced
squatting, punches to the chest, beatings with electrical cords, and the infliction of
physical injuries, was substantively different from the abuse to which D.S. testified, and
thus it qualifies as "new evidence" under section 388. (See In re Jessica C. (2001) 93
Cal.App.4th 1027, 1039-1040.)8
Additionally, the court explained that when it established the guardianship,
Sandra's conduct "was completely unknown to the court." (Italics added.) We have
observed that "[t]he juvenile court must be able to consider the most complete and most
8 In In re Jessica C., supra, 93 Cal.App.4th 1027, the juvenile court determined that
sexual abuse allegations in a section 388 petition were unproven. A second petition was
filed, which contained new sexual abuse allegations. On appeal, the father claimed the
second petition attempted to relitigate the same claims as the original petition. The
appellate court disagreed and stated, "New disclosures of child abuse, substantively
different from previous disclosures, do constitute new evidence." (Id. at p. 1039, italics
added.)
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pertinent information about a child's welfare in determining how best to protect that
child. Whether the information could have been presented earlier if the party seeking
modification had conducted a reasonably diligent investigation does not alter this basic
precept." (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 109, fn. 14.)
Dependency law is intended to provide "maximum safety and protection for children who
are currently being physically, sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm." (§ 300.2.) "One section of the dependency law
may not be considered in a vacuum. It must be construed with reference to the whole
system of law of which it is a part so that all may be harmonized and have effect." (In re
Marilyn H., 5 Cal.4th 295, 307.) Jamie and Elijah were at risk of harm in Sandra's home,
and interpreting the term "new evidence" in section 388 as including physical abuse not
previously revealed by the witnesses comports with the purpose of dependency law. We
find no abuse of discretion.9
9 Sandra ignores that D.S. presented new evidence pertaining to her chronic
marijuana smoking. Sandra does not contend her drug use, standing alone, was an
insufficient ground to remove Jamie and Elijah from her custody and terminate the
guardianship.
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DISPOSITION
The order is affirmed.
MCDONALD, J.
WE CONCUR:
NARES, Acting P. J.
MCINTYRE, J.
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