In re K.M. CA4/2

Filed 10/21/15 In re K.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re K.M. et al., Persons Coming Under
the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E063023

Plaintiff and Respondent, (Super.Ct.No. RIJ1100622)

v. OPINION

S.M. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed in part; reversed in part with directions.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and

Appellant S.M.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and

Appellant K.M.

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 Gregory P. Priamos, County Counsel, Anna M. Marchand, Deputy County

Counsel, for Plaintiff and Respondent.

S.M. (Mother) and K.M. (Father) filed multiple petitions for modification of

existing orders in the dependency and guardianship proceedings concerning their three

children, Ki., Ke. and Ka. The juvenile court denied each petition without a hearing, and

the parents appeal. We will reverse the judgment entered on January 9, 2015, and

remand the cause for a hearing on the petition filed on January 5, 2015. We will

otherwise affirm the judgments appealed from.

PROCEDURAL AND FACTUAL HISTORY

The lengthy history of this case has been described in detail in prior appeals.1 For

purposes of this appeal, a brief summary suffices.

Ke. and his older brother, Ki., were adjudged juvenile court dependents in

Riverside County under a petition pursuant to Welfare and Institutions Code section

300,2 which alleged that both children had suffered serious physical abuse by their

parents. A third sibling, Ka., was born to the parents after dependency proceedings were

initiated as to Ki. and Ke. Ka. was removed from the parents’ custody at birth and was

later adopted. (See generally In re K.M. (Oct. 22, 2014, E059994) [nonpub. opn].)

1 On our own motion, we have taken judicial notice of the records in related case
Nos. E056706, E057540, E058604, E059994 and E060804.

2 All further statutory citations refer to the Welfare and Institutions Code.

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 At a review hearing as to Ki. and Ke. held on July 18, 2012, the juvenile court

found that although the parents had been provided services for nearly three years, they

had made only minimal progress toward alleviating the cause of the dependency and had

not benefitted from the services. The court found that the parents had exceeded the

statutory time limit for reunification services and denied further services. The court set a

section 366.26 hearing to establish a permanent plan for the boys.

On February 26, 2014, the juvenile court established a legal guardianship for Ki.

and terminated dependency jurisdiction as to him. (In re K.M. (Nov. 26, 2014, E060804)

[nonpub. opn].)

On March 12, 2013, the juvenile court established a legal guardianship for Ke.,

and ordered visits between Ke. and his parents to be “reasonable and as directed by the

legal guardian.”3 The court then terminated dependency jurisdiction as to Ke.

On January 5, 2015, the parents filed a petition pursuant to section 388, seeking

modification of the visitation order as to Ke.4 In that petition, the parents alleged as

changed circumstances that they had called Ke.’s guardian on multiple occasions, but that

despite the existing visitation order, the guardian refused to allow them to speak to Ke. or

3 Mother challenged this order in her appeal in case No. E058604. She argued
that the order improperly delegates discretion over every aspect of visitation to the legal
guardian. We found the issue forfeited because she did not object to the order in the
juvenile court. (In re K.M. (E058604, Apr. 28. 2014) [nonpub. opn.].)

4 The record on appeal also contains two section 388 petitions that predate the
January 5, 2015 petition. The order denying the January 5, 2015 petition is the earliest
order as to which the notices of appeal, filed March 5, 2015, are timely. The parties raise
no issue pertaining to the earlier section 388 petitions. Accordingly, we omit any
discussion of the earlier petitions.

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to arrange a visit between Ke. and his parents. They asked for a “more specific”

visitation order. They alleged that the requested modification would be in Ke.’s best

interest because it would allow Ke. and his parents “to communicate and have a bond that

would be benefitting both child and parents.” On January 9, 2015, the juvenile court

summarily denied the petition, stating that the proposed change did not promote the best

interest of the child.

On February 3, 2015, the parents filed a petition to modify the order terminating

parental rights as to Ka. They asserted that the “seizure” of Ka. violated the child’s

Fourth Amendment rights and the parents’ Fourteenth Amendment rights. On the same

date, the parents filed a section 388 petition seeking to overturn the guardianship orders

as to Ki. and Ke. This petition also alleged violation of the children’s Fourth

Amendment rights and the parents’ Fourteenth Amendment rights. On February 19,

2015, the juvenile court summarily denied both petitions, stating that the proposed

modification did not promote the best interest of the children.

On February 11, 2015, the parents filed a section 388 petition seeking to overturn

the order terminating parental rights as to Ka. and Ke.5 The petition again alleged

violation of the children’s Fourth Amendment rights and the parents’ Fourteenth

Amendment rights. On February 26, 2015, the juvenile court summarily denied the

petition, stating that the proposed modification did not promote the best interest of the

children.

5 Parental rights were not terminated as to Ke.

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 On March 5, 2015, the parents filed notices of appeal.

LEGAL ANALYSIS

SUMMARY DENIAL OF THE SECTION 388 PETITION FILED ON

JANUARY 5, 2015, WAS AN ABUSE OF DISCRETION

Sufficiency of the Notices of Appeal.

The only issue the parents raise on appeal is the denial of their petition, filed on

January 5, 2015, and denied on January 9, 2015. This petition sought modification of the

visitation order as to Ke. County counsel argues that the appeal should be dismissed

because the notices of appeal do not refer to the January 9, 2015 order. The parents

contend that we should construe their notices of appeal liberally, to include every order as

to which the notices of appeal were timely. This includes the January 9, 2015 order.

To be sufficient, a notice of appeal must identify the judgment or order appealed

from. We are required to construe a notice of appeal liberally and must find it sufficient

if we can reasonably determine the judgment or order appealed from. (Cal. Rules of

Court, rule 8.405(a)(3).) Here, the notices of appeal specify the date of the order

appealed from: “on or about [February] 19” 2015 or “on or about [February] 19 -20”

2015. They also describe the possible issues on appeal as violations of the children’s

Fourth Amendment rights and the parents’ Fourteenth Amendment rights and inadequate

representation by their lawyers by virtue of the lawyers’ failure to present the

constitutional violations. The constitutional issues were raised in the section 388

petitions filed on February 3, 2015, as to Ke. and Ki. and in the section 388 petition filed

on February 11, 2015, as to Ka. and Ke. The February 3 petitions were denied on

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February 19, 2015. Thus, the notices of appeal clearly identify the orders appealed from.

The notices of appeal do not refer to an order filed on or about January 9, 2015, and they

do not refer to any issue concerning the visitation order as to Ke. Nevertheless, we will

stretch the limits of liberal construction and deem the notices of appeal to include the

January 9, 2015 order. We deem it appropriate to do so because of the fundamental

nature of the interests involved in cases involving parent-child relationships and because,

having had the opportunity to brief the issue on its merits, respondent will suffer no

prejudice as a result. (See Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc.

(1998) 64 Cal.App.4th 955, 960-961 [notice may be liberally construed in favor of appeal

where “the faulty notice of appeal engenders no prejudice and causes no confusion

concerning the scope of the appeal”].)

Denial of the Petition for Failure to Make a Prima Facie Showing That the

Modification Would Promote Ke.’s Best Interest Was an Abuse of Discretion.

Under section 388, a parent may petition to change or set aside a prior order “upon

grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) The juvenile

court shall order a hearing where “it appears that the best interests of the child . . . may be

promoted” by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege

both a change in circumstances or new evidence and the promotion of the child’s best

interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) A prima facie case requiring

a hearing is made if the allegations demonstrate that these two elements are supported by

probable cause. (Ibid.) It is not made if the allegations would fail to sustain a favorable

decision even if they were found to be true at a hearing. (Ibid.) “While the petition must

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be liberally construed in favor of its sufficiency [citations], the allegations must

nonetheless describe specifically how the petition will advance the child’s best interests.”

(Ibid.) Mere conclusory statements as to either prong do not suffice: “If 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 such circumstances, the decision to grant a hearing on a section 388 petition would be

nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584,

593.)

We review a juvenile court’s decision to deny a section 388 petition without a

hearing for abuse of discretion. (In re G.B., supra, 227 Cal.App.4th at p. 1158.)

The gist of the January 5, 2015 section 388 petition is that despite the existing

order that the parents were to be afforded visitation that was “reasonable and as directed

by the legal guardian,” the guardian had refused to permit any visitation without

justification. It is arguable that this does not constitute a change in circumstances and

that the parents might more appropriately have brought a motion to compel the guardian

to comply with the existing order, and if the juvenile court had denied the petition on that

basis, we would not find that it was an abuse of discretion. The juvenile court, however,

did not check the box on the order form indicating that it was denying the petition

because the parents failed to make a prima facie showing of changed circumstances.

Rather, the sole basis for denying the petition stated on the order is that the proposed

change of order would not promote the best interest of the child. Implicitly, then, the

court found that the petition made a prima facie showing of changed circumstances. The

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question, therefore, is whether it was an abuse of discretion to conclude that the parents

did not make a prima facie showing that the order they sought would promote Ke.’s best

interest.

A decision is an abuse of discretion if it exceeds the bounds of reason. (In re

Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Here, the decision does exceed the bounds

of reason because it directly contradicts, without any evidentiary basis, the court’s prior

implicit finding that visitation would promote Ke.’s best interest. As Father points out,

section 366.26, subdivision (c)(4)(C), provides that upon establishing a guardianship, the

court “shall also make an order for visitation with the parents . . . unless the court finds

by a preponderance of the evidence that the visitation would be detrimental to the

physical or emotional well-being of the child.” Here, the court’s prior order for

reasonable visitation at the discretion of the guardian reflects an implicit finding that

visitation would not be detrimental to Ke. and would therefore promote Ke.’s best

interest. There was no evidence submitted with or in opposition to the section 388

petition that would afford a rational basis for changing that conclusion. The petition

expressly stated that a visitation order was in place, and that the guardian was flouting it.

This allegation, if proven, would have warranted a “more specific” visitation order, as the

parents requested in their petition. Accordingly, denying the petition summarily was an

abuse of discretion. (In re G.B., supra, 227 Cal.App.4th at p. 1157.)

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 DISPOSITION

The judgment entered on January 9, 2015, is reversed. The juvenile court is

directed to hold a hearing on the parents’ petition pursuant to section 388, filed January 5,

2015, within 30 days after the finality of this opinion.

The judgments appealed from are otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

RAMIREZ
P. J.

KING
J.

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