Filed 11/10/21 In re D.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.H., a Person Coming Under
the Juvenile Court Law.
D078915
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J519523)
Plaintiff and Respondent,
v.
J.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Rohanee Zapanta and Yvonne Esperanza Campos, Judges. Affirmed.
Christine E. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
J.D. (Mother) appeals orders issued in the Welfare and Institutions
Code section 3001 dependency proceedings for her 17-year-old child, D.H. In
September 2017, the juvenile court declared D.H. to be a dependent of the
juvenile court. In February 2019, Mother’s reunification services were
terminated and the court ordered that D.H. continue in foster care at the
San Pasqual Academy (SPA). Although D.H. had been assigned the female
gender at birth, he had been experiencing gender dysphoria for years and
identifying as male, and sought gender affirming therapy in the form of
testosterone treatment.2 In his application for court authorization for such
treatment, D.H. stated that both Mother and her counsel had been contacted
and disagreed with his request for such therapy. On February 25, 2021, the
court approved D.H.’s application and issued an ex parte order authorizing
gender affirming hormone therapy for him. At the March 25 initial
postpermanency planning review hearing, the court, on the Agency’s inquiry,
confirmed that it was not changing the February 25 order at that hearing.
The court granted the request by Mother’s counsel to set the issue of D.H.’s
hormone therapy for trial, which it set for May 25, to be heard concurrently
with the contested postpermanency planning review hearing. On May 25,
Mother filed a section 388 petition seeking, inter alia, modification of the
February 25 order authorizing hormone therapy for D.H. At the May 25
hearing, the court summarily denied Mother’s section 388 petition and
proceeded with the contested postpermanency planning hearing.
1 All statutory references are to the Welfare and Institutions Code.
2 Respecting D.H.’s request, we refer to him using male pronouns.
2
On appeal, Mother contends that the court: (1) violated Mother’s
constitutional right to due process by issuing the February 25 order ex parte
without first providing her with notice and an opportunity to be heard on
D.H.’s request for authorization of hormone therapy; (2) violated her
constitutional right to due process by requiring her to file a section 388
petition to challenge the court’s prior order authorizing D.H.’s hormone
therapy; (3) abused its discretion by summarily denying her section 388
petition; (4) lacked jurisdiction to issue its order authorizing D.H.’s hormone
therapy; (5) failed to consider D.H.’s best interests in authorizing hormone
therapy; and (6) erred in stating at the March 25 hearing that it had no
authority to change the February 25 order. For the reasons discussed below,
we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
D.H. was born in January 2004 and was assigned the female gender at
birth. In May 2017, D.H. was a passenger in a car driven erratically by
Mother as she attempted to flee from police. Mother ran three stop signs and
a traffic light before pulling over. After pulling over, Mother struggled with
the police officer and resisted arrest. D.H., then 13 years old, told officers
that he had been living in the car with Mother since he was five years old.
The car was unsanitary and had a strong foul odor. Mother was arrested and
D.H. was taken into protective custody.
In May 2017, the San Diego County Health and Human Services
Agency (Agency) filed a section 300, subdivision (b) dependency petition
alleging that D.H. had suffered, or was at substantial risk of suffering,
serious physical harm or illness as a result of Mother’s failure to adequately
protect D.H. and her failure to provide D.H. with adequate food, clothing,
shelter, or medical treatment. In the Agency’s detention report, the social
3
worker stated that Mother described herself as a “traveler” and reported that
D.H. bathed and urinated in their vehicle. Mother initially spoke to the
social worker in an American accent but later spoke in a British accent. The
court detained D.H. in out-of-home care.
In late June, D.H. was detained at SPA. At the September contested
jurisdiction and disposition hearing, the court found the petition’s allegations
true, declared D.H. to be a dependent of the court, and removed him from
Mother’s custody. The court also found that T.H. (Father) was D.H.’s
biological father and entered a judgment of his parentage without objection
from Mother. The court ordered reunification services for Mother, but not
Father, who was incarcerated at that time. Both parents were allowed
supervised visitation with D.H. In October, Mother submitted a letter to the
court stating that she was in the process of establishing a ministry program
and that she and her ministry did not support medical-based therapy and
instead preferred natural herbal medicine and biblical remedies. In
November, a court-appointed special advocate (CASA) was appointed for D.H.
and the court gave the CASA authority to make all decisions pertaining to
D.H.’s education.
During the reunification period, Mother participated in biweekly
therapy. Mother’s therapist diagnosed her as suffering from a major
depressive disorder, other psychotic disorder, stimulant use disorder, and an
unspecified personality disorder. During a visit with Mother, D.H. told her
that he did not want to return to her care. D.H. often ended his visits with
Mother early because she made him angry, did not listen to him, and made
false statements. D.H.’s CASA reported that D.H. did not want to return to
Mother’s care, fearing that doing so would jeopardize his health, happiness,
and safety. D.H. enjoyed his placement at SPA. In its 12-month review
4
hearing report, the Agency stated that D.H. had begun to question his gender
identity and had asked to be referred to as male. When D.H. informed
Mother of his preference to identify as male, Mother told him that he was not
allowed to become male. The court continued the 12-month review hearing
and set the matter to be heard as a combined 12-month and 18-month review
hearing.
In its 18-month review hearing report, the Agency recommended that
Mother’s reunification services be terminated, noting that she continued to
exhibit mental health symptoms and erratic behavior. The Agency believed
that Mother did not have the ability or resources to meet D.H.’s needs.
Mother’s therapist reported that Mother continued to deny the protective
issues and had poor awareness regarding her mental health and the world,
generally. The Agency also reported that D.H. openly identified as male and
was in the process of transitioning from female to male. He participated in
biweekly therapy with a TERM therapist to explore his gender identity. His
therapist reported that D.H. had expressed a desire to possibly undergo
medical treatment for gender reassignment in the future. In November 2018,
Mother was discharged from therapy due to excessive absences. She was
subsequently given a referral for a new therapist, but failed to follow through
with that referral and refused treatment. During a December 2018 meeting
with an Agency social worker, Mother stated that she disagreed with D.H.’s
identification and outward expression as a male because it violated her
religious beliefs; she opined that it was merely a phase that D.H. was going
through. The Agency recommended that the court forgo setting a section
366.26 hearing because D.H. wished to remain at SPA, he was not a proper
subject for adoption, and there were no individuals willing to assume
guardianship of him.
5
In February 2019, the court held the combined contested 12-month and
18-month review hearing. The court terminated Mother’s reunification
services, found that the setting of a section 366.26 hearing was not in D.H.’s
best interests, and ordered a permanent plan of continued foster care for him.
During the first postpermanency planning review period, D.H. turned
over to SPA staff an unopened pack of cough and cold pills and admitted
having stolen it during an outing. He denied regular substance abuse and
agreed to attend a substance abuse educational program. D.H. reported that
he was openly transgender and was transitioning from female to male. In
April, in lieu of individual TERM therapy, he began participating in weekly
individual and group therapy at SPA that addressed gender identity, trauma,
substance abuse, and other topics. During an April child and family team
(CFT) meeting, Mother voiced her disagreement when D.H. discussed his
gender identity. D.H. subsequently refused to attend one visit with her and
terminated another visit early, explaining that Mother “trigger[ed]” him and
caused him anxiety. At the July review hearing, the court confirmed its prior
selection of long-term foster care as D.H.’s permanent plan.
In her report during the second review period, the CASA stated that
D.H. was interested in hormone therapy and obtaining an elastic breast band
and had expressed discomfort living in an all-girls dormitory. Also, D.H. did
not want to see Mother again. During a January 2020 CFT meeting, Mother
asserted that D.H. was a female and Mother had to be redirected several
times to address D.H. with male pronouns. In the courthouse lobby before
the January review hearing, Mother stated her belief, in D.H.’s presence, that
his exploration of his gender identity was a byproduct of adolescence and that
he was being adversely influenced by persons around him. D.H. left the lobby
in order to terminate the interaction. At the review hearing, the court
6
granted Mother’s request for new court-appointed counsel and directed the
Agency to inquire with SPA about allowing D.H. to live in a male dormitory.
In March, D.H.’s counsel filed a section 388 petition, asking the court to
modify its September 2017 order that granted Mother supervised visits by
issuing a new order prohibiting contact between Mother and D.H. The court
found that D.H. had made a prima facie showing on his petition and set a
contested hearing on it. At the July 2020 contested hearing on D.H.’s
petition, the court granted the petition and issued a no-contact order that
protected D.H. from any communication from, or contact by, Mother, finding
that contact with Mother was detrimental to D.H.’s health and well-being.
D.H. participated in weekly therapy at Rady Children’s Hospital and
learned more about the gender transition process. His CASA reported that
he continued to express interest in hormone therapy to effect his transition
from female to male. At the September postpermanency planning review
hearing, the court confirmed its prior orders, including D.H.’s placement at
SPA with a permanent plan of long-term foster care and the no-contact order
between Mother and him.
On February 23, 2021, D.H. filed an application for an order for medical
treatment, requesting authorization for gender affirming hormone therapy
(i.e., testosterone treatment). David Inwards-Breland, M.D., D.H.’s physician
at the Rady Children’s Hospital Center for Gender Affirming Care, signed
that portion of the application setting forth D.H.’s diagnosis of gender
dysphoria and his need for gender affirming hormone therapy (i.e.,
testosterone treatment). Dr. Inwards-Breland explained the consequences to
D.H. of not providing him with that treatment as follows:
“Patient experiences gender dysphoria—severe distress
related to the presence of breast tissue, pitch of his voice
and lack of traditionally masculine secondary sex
7
characteristics, which he experiences to be incongruent
with his gender identity, resulting in depressed mood,
anxiety, extreme social discomfort, and hopelessness.
Without treatment, there is a high likelihood that
symptoms will persist and worsen.”
Attached to the application was a letter from H. Bixby Marino-Kibbea, the
director of the Rady Children’s Hospital Center for Gender Affirming Care,
who had completed psychosocial assessments of D.H. in November 2019,
January 2020, and January 2021. Marino-Kibbea reported that D.H. had
started his social transition six years earlier and had a strong identity as a
boy, and found that he experienced significant distress related to the pitch of
his voice, lack of typically masculine secondary sex characteristics, and
presence of breast tissue, which resulted in his depressed mood, anxiety, and
extreme social discomfort. Marino-Kibbea stated that D.H.’s psychiatric
symptoms appeared to be reasonably well-managed at that time and that
D.H. had reported having a strong support system, including friends, his
social worker, and SPA staff. Marino-Kibbea opined that gender affirming
hormone therapy (i.e., testosterone treatment) was medically necessary to
alleviate the distress that D.H. experienced related to gender dysphoria,
which was detrimental to his mental health.
Also attached to D.H.’s application was a six-page informed consent
form signed by D.H. on February 22. The form described what testosterone
treatment is, its benefits and risks, and potential side effects. By signing
that form, D.H. confirmed that he had discussed with his doctor the benefits
and risks of taking testosterone, the possible or likely consequences of
hormone therapy, and alternative treatment options. D.H. also confirmed
that he understood the risks of such treatment, had sufficient opportunity to
discuss treatment options with his clinician, and had all of his questions
8
answered to his satisfaction. Confirming that he believed he knew enough to
give his informed consent for testosterone therapy, D.H. signed the form and
also initialed adjacent to the statement: “I want to begin taking
testosterone.”
The application also showed that Mother, Father, Mother’s counsel,
Father’s counsel, and D.H.’s counsel had been notified of D.H.’s application
for an order authorizing gender affirming therapy and that all agreed with it,
except for Mother and Mother’s counsel, who opposed it.3 On February 25,
the court signed the order ex parte, authorizing gender affirming therapy
(i.e., testosterone treatment) for D.H.
At the March 25 initial postpermanency planning review hearing,
Mother requested that the court set for trial the issues of D.H.’s return to her
care, her objection to hormone therapy for D.H., and the no-contact order.
The visiting judge set a contested hearing on those issues for May 25 and
confirmed that it would not be changing the prior February 25 order
authorizing D.H.’s hormone therapy at the March 25 hearing. On May 5,
although she was represented by court-appointed counsel, Mother filed, in
pro per, a notice of appeal expressly challenging, inter alia, the March 25
order and implicitly challenging the February 25 order authorizing gender
affirming hormone therapy for D.H.4
3 The application stated that on February 18 Mother was notified of
D.H.’s application by telephone and Mother’s counsel was notified by e-mail,
and that each did not agree with the request for an order authorizing
hormone therapy.
4 Although Mother’s May 5, 2021 notice of appeal did not expressly
challenge the February 25, 2021 order, we construe her notice of appeal
broadly to include a challenge to that order, which authorized gender
affirming hormone therapy for D.H.
9
On April 30, D.H. attended his first hormone therapy appointment and
learned about the process and its potential effects. On May 5, D.H. attended
an appointment at which a nurse showed him how to administer testosterone
injections. D.H. placed reminders on his phone to ensure that he would not
miss a scheduled injection. D.H. had not been meeting with his therapist
consistently; the nurse strongly encouraged him to participate in therapy
during the gender transition process. The Agency social worker agreed to
locate a therapist that specialized or had experience in treating youths who
were undergoing that process.
At the May 10 pretrial status conference, Mother’s counsel confirmed
the May 25 contested hearing. In addition to discussing the contested
postpermanency planning review hearing, Mother’s counsel stated: “Mother
is also asking for an opportunity to be heard regarding her opposition to the
hormone therapy. We did indicate opposition to the ex-parte [order], but the
court authorized it against Mother’s and her counsel’s objection. . . . Our
planned witnesses would be just some cross-examination of the social worker,
and Mother will be testifying. The court replied, “All right.”
In its final addendum report for the May 25 hearing, the Agency stated
that D.H. had his third testosterone injection on May 19 and had not reported
any issues with his treatment. He remained resistant to therapy and had
been encouraged to participate in therapy. SPA staff reported concerns that
D.H. had started to self-isolate. He requested the COVID-19 vaccine so that
he could obtain off-campus employment. Father consented to the vaccination,
but Mother objected to it.
On May 25, Mother filed a section 388 petition requesting that the
court vacate its order authorizing hormone therapy for D.H. and modify its
no-contact order to allow her contact with him, among other requests.
10
Mother’s petition alleged that there had been a change in circumstances since
the prior orders, including D.H.’s increased isolation, his decreased
willingness to participate in therapy, his admitted substance use in
December 2020, and Mother’s community college coursework. Her petition
also alleged that Mother’s requested change in the court’s orders were in
D.H.’s best interest because he appeared to be struggling with his mental
health.
At the May 25 hearing, the court initially heard arguments as to
whether Mother had made a prima facie showing on her section 388 petition.
Mother argued that she had been denied her right to due process because she
was not provided with an opportunity to be heard on her objection to hormone
therapy for D.H. before the court issued its order authorizing his hormone
therapy. The Agency’s counsel argued that Mother had an opportunity to
request a hearing on D.H.’s hormone therapy, but failed to do so. The
Agency, D.H., and Father opposed Mother’s section 388 petition.
The court summarily denied Mother’s section 388 petition requesting
modification of its prior order authorizing hormone therapy for D.H., finding
that she had not made a prima facie showing of changed circumstances. The
court also summarily denied her section 388 petition as to her requested
modifications of other orders.
After denying Mother’s section 388 petition, the court proceeded with
the contested postpermanency planning hearing on the issues of D.H.’s
placement, his request for COVID-19 vaccination, and the educational rights
for him. The court admitted in evidence the Agency’s reports and the CASA’s
report. Mother’s counsel stated that she had no questions for the Agency’s
social worker and then called Mother to testify. Mother testified that she
opposed vaccination for D.H. because of its dangerous and damaging side
11
effects and her Christian beliefs. The court admitted in evidence various
documents offered by Mother, including documents showing her participation
in community college courses. The court also stated that it would consider
the documents attached to Mother’s section 388 petition.
D.H. testified in response to Mother’s testimony. He testified that
living with Mother had negatively impacted his happiness and mental health.
He had resided out of her care for four or five years and had no unsupervised
contact with her during that period. He disagreed that he was unhappy at
SPA and testified that nearly every person there supported him. He stated
that the SPA community was loving and kind and that his placement there
gave him a second chance at life. He wanted the COVID-19 vaccine so that
he could obtain employment, and had researched its side effects in making
his decision.
The court granted D.H.’s request to receive the COVID-19 vaccine and
continued his CASA as the sole holder of his educational rights. The court
also continued his placement at SPA with a permanent plan of long-term
foster care and also continued the no-contact order between Mother and D.H.
The court found D.H. to be credible, noting that he consistently articulated
his needs in a well-reasoned manner. The court also authorized a follow-up
appointment with D.H.’s treating physician regarding hormone therapy and
ordered that the Agency assess off-campus therapy for him related to his
gender identity and hormone therapy. Mother timely filed a notice of appeal
challenging the May 25 order denying her section 388 petition opposing
hormone therapy for D.H. and the order denying her request for placement of
D.H. in her care.
12
DISCUSSION
I
Constitutional Right to Due Process
Mother contends that the February 25, 2021 order authorizing gender
affirming hormone therapy for D.H. must be reversed because the juvenile
court violated her constitutional right to due process by not providing her
with notice and an opportunity to be heard before issuing that order.
A
Section 362, subdivision (a) provides that if a child is adjudged a
dependent of the court under section 300, “the court may make any and all
reasonable orders for the care, supervision, custody, conduct, maintenance,
and support of the child, including medical treatment, subject to further order
of the court.” (Italics added.) Similarly, section 369, subdivision (c) provides
that if a dependent child is placed in the care and custody of an Agency social
worker “and it appears to the court that there is no parent . . . capable of
authorizing or willing to authorize medical . . . or other remedial care or
treatment for the dependent child, the court may after due notice to the
parent . . . order that the social worker may authorize the medical . . . or other
remedial care for the dependent child, by licensed practitioners, as necessary.”
(Italics added.)
In general, parents and other parties to juvenile dependency cases have
the right to procedural due process under the United States Constitution,
which requires notice and an opportunity to be heard appropriate to the
nature of the case. (In re Jesusa V. (2004) 32 Cal.4th 588, 601, citing Boddie
v. Connecticut (1971) 401 U.S. 371, 377; see also In re B.G. (1974) 11 Cal.3d
679, 689; In re Matthew P. (1999) 71 Cal.App.4th 841, 849, 851.) “ ‘A
13
meaningful hearing requires an opportunity to examine evidence and cross-
examine witnesses . . . .’ ” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.)
It is fundamental that the right to notice and an opportunity to be heard
must be granted at a meaningful time and in a meaningful manner. (Fuentes
v. Shevin (1972) 407 U.S. 67, 80.)
B
Mother argues that the court’s failure to provide her with notice and an
opportunity to be heard before issuing its February 25, 2021 order violated
her constitutional right to due process and that the order must therefore be
reversed. However, assuming arguendo that Mother was constitutionally
entitled to notice and an opportunity to be heard before the court issued its
February 25, 2021 order, we nevertheless conclude that she waived or
forfeited her right to be heard by not timely asserting that right after
learning of D.H.’s intent to seek the court’s authorization for gender affirming
therapy or after the court’s February 25, 2021 ex parte order granting his
application for such authorization.
“An appellate court ordinarily will not consider challenges based on
procedural defects or erroneous rulings where an objection could have been
but was not made in the trial court. [Citation.] Dependency cases are not
exempt from this forfeiture doctrine. [Citations.] The purpose of the
forfeiture rule is to encourage parties to bring errors to the attention of the
juvenile court so that they may be corrected.” (In re Wilford J. (2005) 131
Cal.App.4th 742, 754.) “In dependency litigation, nonjurisdictional issues
must be the subject of objection or appropriate motions in the juvenile court;
otherwise[,] those arguments have been waived [or forfeited] and may not be
raised for the first time on appeal. [Citations.]” (In re Christopher B. (1996)
43 Cal.App.4th 551, 558.) Parents generally will not be excused from
14
application of this forfeiture doctrine when they had the opportunity to
present the error (e.g., defect in notice) to the juvenile court and failed to do
so. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) “This is precisely
because defective notice [or other procedural error] and the consequences
flowing from it may easily be corrected if promptly raised in the juvenile
court. [Citation.]” (In re Wilford J., at p. 754 [concluding that father forfeited
contention on appeal that he was denied adequate notice of jurisdictional
hearing by appearing at subsequent hearings thereafter without raising that
issue and thereby denying juvenile court opportunity to correct that error]; cf.
In re B.G., supra, 11 Cal.3d at p. 689 [although mother did not receive
adequate notice of jurisdictional hearing, she forfeited her right to raise that
issue on appeal when she appeared at subsequent hearings and failed to
challenge validity of jurisdictional order].) This forfeiture doctrine also
applies to constitutional errors. “Points not raised in the trial court will not
be considered on appeal. [Citation.] ‘Even a constitutional right must be
raised at the trial level to preserve the issue on appeal [citation].’ [Citation.]
In civil cases, constitutional questions not raised in the trial court are
considered waived. [Citation.]” (Hepner v. Franchise Tax Bd. (1997) 52
Cal.App.4th 1475, 1486.)
Our review of D.H.’s February 23, 2021 application shows that Mother
and Mother’s counsel were notified of his intent to apply for an order
authorizing gender affirming therapy for him. According to D.H.’s
application, Mother was notified by telephone on February 18 and Mother’s
counsel was notified by e-mail on February 18. Mother does not dispute on
appeal that she received such notice. D.H.’s application stated that both
Mother and Mother’s counsel did not agree with his request for authorization
15
for gender affirming hormone therapy.5 Accordingly, even if we were to
assume that the notice provided to Mother and Mother’s counsel did not
comply with Mother’s procedural due process right to notice, Mother
nevertheless had de facto prior notice of D.H.’s intent to file an application for
an order authorizing gender affirming therapy several days before the court
entered the order authorizing such treatment; yet Mother failed to file any
papers opposing such application or to request a hearing prior to February 25
and failed to raise or object to any due process error in the juvenile court
promptly after the court issued its February 25 ex parte order approving that
application and authorizing gender affirming therapy for D.H. Further, even
if we were to assume that the court deprived Mother of a meaningful
opportunity to be heard on D.H.’s application by issuing the February 25
order ex parte without first holding a hearing, Mother also failed to promptly
raise or object to that due process error in the juvenile court.
The record shows that Mother and her counsel had seven days’ actual
prior notice before the court issued its February 25, 2021 ex parte order.
Further, the record shows that D.H. did not receive his first testosterone
injection until on or after May 5. Mother and her counsel thus had at least
until May 5, 2021, to object to hormone therapy for D.H. and request that the
court set a hearing at which the parties would have the opportunity to
address the issue of hormone therapy for D.H. before that therapy began. If
Mother or her counsel had timely objected to hormone therapy for D.H. and
timely requested a hearing on the issue, the court presumably could have set
an evidentiary hearing on the issue of authorization of hormone therapy for
5 As discussed above, Father, Father’s counsel, and D.H.’s counsel all
agreed with his request for authorization of hormone therapy.
16
D.H. and afforded Mother a meaningful opportunity to be heard at that
hearing prior to the commencement of D.H.’s hormone therapy.
By not timely requesting a hearing regarding hormone therapy for D.H.
prior to the commencement of the therapy, Mother waived or forfeited her
constitutional right to be heard on the issue before D.H.’s hormone therapy
began.
Mother also forfeited her right to be heard regarding hormone therapy
for D.H. at the May 25 hearing. Of particular note, Mother waited until the
March 25, 2021 initial postpermanency planning hearing to request that the
court set for trial the issue of her opposition to hormone therapy for D.H., and
she did not object to the court’s setting that hearing for May 25, to be heard
together with the contested postpermanency planning hearing. At the May
10 pretrial status conference, Mother’s counsel confirmed the May 25
contested hearing on the hormone therapy issue, representing that she
planned to cross-examine the Agency’s social worker and have Mother testify
on that issue. However, on May 25, rather than proceeding with the
contested hearing on her opposition to hormone therapy for D.H., Mother
elected instead to file a section 388 petition requesting modification of the
February 25 order. That petition was summarily denied for failure to make a
prima facie showing of changed circumstances. Mother’s counsel did not
raise the issue of hormone therapy outside the context of Mother’s section 388
petition, despite the fact that the issue had been set for trial, and did not
cross-examine the Agency’s social worker or have Mother testify regarding
D.H.’s hormone therapy at that hearing.
If Mother had timely objected to the court’s ex parte order authorizing
D.H.’s hormone therapy and/or timely requested an opportunity to be heard
at an evidentiary hearing on that issue promptly after that order was
17
entered, the juvenile court presumably could have cured any purported
violation of Mother’s due process rights by conducting an evidentiary hearing
soon thereafter and prior to the commencement of D.H.’s hormone therapy.
Further, if Mother had pursued the issue at the May 25 hearing, outside the
context of her section 388 petition, as she could have done, she could have
been heard on the issue at that time. However, through her dilatory actions
and procedural choices below, we conclude that Mother forfeited her right to
be heard on the issue of hormone therapy for D.H. in the juvenile court. (In
re Wilford J., supra, 131 Cal.App.4th at p. 754; In re Christopher B., supra,
43 Cal.App.4th at p. 558; In re Dakota S., supra, 85 Cal.App.4th at p. 501; In
re B.G., supra, 11 Cal.3d at p. 689; Hepner v. Franchise Tax Bd., supra, 52
Cal.App.4th at p. 1486.).6
II
Mother’s Section 388 Petition
Mother contends that the trial court: (1) violated her constitutional
right to due process by requiring her to file a section 388 petition in order to
challenge its February 25, 2021 order authorizing hormone therapy for D.H.;
and (2) abused its discretion by summarily denying her section 388 petition
based on its finding that she had not made the required prima facie showing
of changed circumstances since its February 25 order.
6 Because we dispose of this contention on the ground of waiver or
forfeiture, we need not, and do not, address the argument by the Agency that
because Father, as D.H.’s biological father, consented to gender affirming
therapy for D.H., the court could issue an order authorizing hormone therapy
for D.H. pursuant to section 369, subdivision (c), as quoted above, regardless
of any opposition by Mother.
18
A
Procedural background. On May 25, 2021, Mother filed a section 388
petition requesting, among other things, that the court vacate its order
authorizing hormone therapy for D.H. Mother’s petition alleged that there
had been a change in circumstances since the court’s February 25 order,
citing D.H.’s increased isolation and his decreased willingness to participate
in therapy, as well as the fact that the court had issued its ex parte order
without giving her an opportunity to be heard in opposition to D.H.’s
application for hormone therapy.7 In particular, her petition alleged that her
requests for changed orders were in D.H.’s best interest because he was
isolating and struggling with his mental health and she had been denied her
constitutional due process right to be heard regarding hormone therapy.
At the May 25 hearing, the court initially heard arguments as to
whether Mother had made a prima facie showing on her section 388 petition.
Mother argued that she had been denied her right to due process because she
was not given an opportunity to be heard on her objection to hormone therapy
7 In an attachment to Mother’s section 388 petition, she alleged: “Both
[Mother] and [Mother’s counsel] voiced their opposition upon notification of
the ex parte request authorizing gender affirming therapy. [Mother] was
informed by the social worker that due to her objection a special hearing
would be set to address this issue. A special hearing was never set. The
court authorized the therapy despite [Mother’s] disagreement and [Mother’s
counsel’s] disagreement being noted on the application for the ex parte order.
[Mother] was never given the opportunity to be heard regarding her concerns
for [D.H.’s] well-being and her factual disagreements with the information
provided in the letter from therapist H. Bixby Marino-Kibbea, LCSW,
recommending the treatment. Today’s addendum identifies [D.H.] as
reporting no close relationships with peers and staff at SPA and as refusing
therapy in direct contrast to the letter by the therapist recommending the
treatment. The house parent per today’s addendum is also expressing
concerns about [D.H.’s] well-being and increased isolation.”
19
for D.H. before the court issued its order authorizing his hormone therapy.
The Agency’s counsel argued that Mother had an opportunity to request a
hearing on D.H.’s hormone therapy, but failed to request a hearing. The
Agency, D.H., and Father opposed Mother’s section 388 petition. After
hearing arguments of counsel, the court stated:
“What I noted was that with regard to the hormone . . .
therapy request that it be suspended, we are looking at
changed circumstances. And when I’m looking at that and
also just the additional argument of due process with
regard to the ex-parte request, I’m looking at the time that
this case has progressed to, the level that it has already
progressed to, and also given the time the initial concerns
of [Mother’s] ability to have appropriate healthy and safe
insight as to [D.H.’s] situation and also as to [D.H.’s]
health, safety and well-being. And the actual concerns that
initially, you know, derived from the original petition does
not -- there does not appear to have been . . . any additional
evidence to support that [Mother] has addressed those
concerns to show the court that there has been some
progress on her end to achieve appropriate healthy and safe
insight for herself and for her want to make contact with
[D.H.] There was noted we did have a hearing for the no-
contact order. That was months prior to the request for
hormone . . . therapy.
“[¶] . . . [¶]
“We’ll also note that the argument given that there is . . .
potential concern with the risks of [hormone therapy], and
all the concerns associated with what is recommended with
hormone . . . therapy, those are all medically and
professionally assessed.
“Prior to that during the actual treatment and with today’s
update, health and medical-wise it does appear that
everything is in compliance and being monitored
appropriately. I will note the request by [D.H.’s] counsel
with regard to a follow-up with a treatment provider. As
for the prima facie argument as to the hormone . . .
20
therapy, there has been no [changed] circumstances to
support the want to be able to make a meaningful objection
given there has been no additional evidence to provide
support of a healthy and safe and appropriate insight from
[Mother].”
Accordingly, the court summarily denied Mother’s section 388 petition
requesting that it vacate its February 25 order authorizing hormone therapy
for D.H., finding that Mother had not made a prima facie showing of changed
circumstances.
B
Section 388. Section 388 allows a parent or other interested person to
petition the juvenile court to change, modify, or set aside a previously made
dependency order. (§ 388, subd. (a)(1).) The petitioner has the burden to
show that there are changed circumstances or new evidence and that the
requested change would be in the child's best interests. (In re Stephanie M.
(1994) 7 Cal.4th 295, 317 (Stephanie M.); In re G.B. (2014) 227 Cal.App.4th
1147, 1157; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) A section 388
petition must be liberally construed in favor of its sufficiency. (In re Angel B.
(2002) 97 Cal.App.4th 454, 461.)
The petitioner "need only make a prima facie showing to trigger the
right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th
295, 310.) However, if the petitioner does not meet that threshold showing,
the juvenile court in its discretion may deny a request for a section 388
hearing. "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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
The petition's allegations must be specific regarding the evidence to be
presented and must not be conclusory. (In re Alayah J. (2017) 9 Cal.App.5th
21
469, 478.) In deciding whether a prima facie showing has been made, the
court may consider the entire factual and procedural history of the case. (In
re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
The decision whether to grant or deny a section 388 petition is within
the discretion of the juvenile court. (In re B.D. (2008) 159 Cal.App.4th 1218,
1228; In re Y. M. (2012) 207 Cal.App.4th 892, 920.) Likewise, a decision to
summarily deny a section 388 petition without an evidentiary hearing is
within the juvenile court's discretion. (In re Angel B., supra, 97 Cal.App.4th
at p. 460; In re Zachary G., supra, 77 Cal.App.4th at p. 808.) Where an
appellant has made a prima facie showing in support of his or her section 388
petition, it is an abuse of discretion for the juvenile court to summarily deny
an evidentiary hearing on that petition. (In re Hirenia C. (1993) 18
Cal.App.4th 504, 516–517; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413,
1416.) On appeal, a reviewing court will not disturb a discretionary decision
by the juvenile court unless it abuses its discretion by making an arbitrary,
capricious, or patently absurd determination. (Stephanie M., supra, 7 Cal.4th
at p. 318; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) The appellant
has the burden on appeal to affirmatively show that the juvenile court abused
its discretion. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
C
Mother argues that the juvenile court violated her constitutional right
to due process by requiring her to file a section 388 petition in order to
challenge its authorization of hormone therapy for D.H. However, the
premise of Mother’s argument is unsupported by the record. Our review of
the record shows that the court did not, at any time either prior to or during
the May 25, 2021 hearing, rule or otherwise state that Mother’s sole recourse
for challenging its February 25 order authorizing D.H.’s hormone therapy
22
was to file a section 388 petition. First, at the March 25 initial
postpermanency planning hearing, Mother requested that the court set for
trial the issue of her objection to hormone therapy for D.H., which the court
agreed to do. Mother did not object to the court’s setting of that hearing for
May 25, to be heard together with the contested postpermanency planning
hearing. At the May 10 pretrial status conference, Mother’s counsel
confirmed the May 25 contested hearing on the hormone therapy issue,
representing that she planned to cross-examine the Agency’s social worker
and have Mother testify as to that issue.
However, on May 25, rather than proceeding with the contested
hearing on her opposition to hormone therapy for D.H., Mother filed a section
388 petition requesting modification of the February 25 order. Contrary to
Mother’s assertion, her filing of a section 388 petition was not the result of
any ruling or other statement by the court at or prior to the May 25 hearing.
Instead, the reporter’s transcript from the May 25 hearing reveals Mother’s
reasoning for her filing of a section 388 petition rather than pursuing an
evidentiary hearing on her opposition to D.H.’s hormone therapy. At the
outset of that hearing, the Agency’s counsel stated: “With respect to
proceeding, the Agency is prepared to move forward. We did, in the meet and
confer, discuss whether or not a [section] 388 [petition] was necessary for
some of Mother’s requests. It is my position that a [section] 388 [petition] is
necessary. I would like to address [the issue of a] prima facie [showing] with
respect to the no-contact order, the testosterone treatment, and the football
[participation authorization].” Mother’s counsel stated: “[N]o one raised any
issue about a [section] 388 [petition] being necessary until a response to my
email on Friday which outlined the same issues that we had mentioned at
every prior hearing. [¶] So in an abundance of caution, I did file a [section]
23
388 [petition] that is authored by me. . . . I apologize for the lateness; but as
I’ve indicated, I wasn’t aware that [D.H.’s] counsel and the Agency was
raising this objection until Friday.” (Italics added.) Mother’s counsel
continued: “I’m hoping the court has the [section] 388 [petition] I authored.
That would be the one I would be asking to go forward on today, if it is
required in the court’s opinion.” The court then confirmed that it had a copy
of the section 388 petition filed by Mother’s counsel.8
The court proceeded to hear arguments from counsel on the section 388
petition filed by Mother’s counsel on her behalf. D.H.’s counsel expressed her
opinion that a section 388 petition was necessary for Mother to address the
issue of his hormone therapy because the court had issued a prior order
authorizing hormone therapy. Father’s counsel agreed with D.H.’s counsel
that a section 388 petition was necessary for Mother to address D.H.’s
hormone therapy. The court then heard arguments by Mother’s counsel
regarding whether her section 388 petition had made a prima facie showing
of changed circumstances and that the requested modification was in D.H.’s
best interest. In particular, Mother’s counsel argued that Mother had a right
to be heard initially when the court considered D.H.’s ex parte application for
authorization for hormone therapy and expected that a special hearing would
be set to consider her opposition to it. She also argued that Mother objected
to the denial of her constitutional right to due process and, in particular, not
being given an opportunity to be heard with regard to hormone therapy for
D.H. and stated that Mother was asking for that in her section 388 petition.
8 Mother’s counsel instructed the court and the other parties’ counsel to
disregard the separate section 388 petition filed directly by Mother the
previous day.
24
In response to Mother’s due process argument, the Agency’s counsel
argued that all parties had been notified of Mother’s opposition to hormone
therapy for D.H., but the ex parte order was nevertheless issued and a special
hearing on hormone therapy was never set. The Agency’s counsel argued:
“[I]f [Mother] wanted to have her day in court and object to that, she had that
ability. So to bring it up now, it’s a court order and Mother needs to meet the
prongs of [section] 388 in order to meet that.” Father’s counsel joined in the
arguments of the Agency’s counsel.
After hearing arguments of counsel, the court addressed the question of
whether Mother had made a prima facie showing in support of her section
388 petition. The court found that Mother had not made a prima facie
showing of changed circumstances since the prior order authorizing hormone
therapy for D.H. Importantly, the court did not at any point during the
hearing on Mother’s section 388 petition make an express or implicit ruling
or otherwise state or indicate that Mother’s sole means of challenging, or
otherwise being heard on the issue of, hormone therapy for D.H. was to file a
section 388 petition. Likewise, the court never suggested that its ruling on
the section 388 petition precluded Mother from raising the hormone therapy
issue at the May 25 hearing when the court considered the merits of the
postpermanency planning hearing. Instead, the record shows that although
Mother had previously made clear her intention to challenge the hormone
therapy authorization at the postpermanency planning hearing, she
proceeded with that hearing after the court had denied her section 388
petition, and never raised, or attempted to raise, her objections to hormone
therapy for D.H. As a result, Mother forfeited her claim that the court
violated her constitutional right to a hearing on that issue. Rather, the
record shows that Mother’s counsel filed her section 388 petition because she
25
anticipated that counsel for the Agency, D.H., and/or Father would object to
any other method by which Mother might seek to be heard on the issue of
D.H.’s hormone therapy (e.g., a contested hearing). Mother’s tactical choice
to file a section 388 petition “in an abundance of caution,” as Mother’s counsel
explained, because of the possibility of an objection by opposing counsel to
alternative tactics does not equate with a ruling by the court. Accordingly,
we reject Mother’s argument that the court required her to challenge D.H.’s
hormone therapy solely by means of filing a section 388 petition, and thereby
violated her constitutional right to due process.
D
Mother also argues that the court nevertheless abused its discretion by
summarily denying her section 388 petition because she made prima facie
showings of changed circumstances and that D.H.’s best interests required
that the court hold a full evidentiary hearing on her petition. In support of
the allegations in her section 388 petition, Mother attached D.H.’s February
23, 2021 application for authorization for gender affirming hormone therapy,
the February 25 order authorizing that therapy, documentation regarding
Mother’s contact with, or attempts to contact, the Agency social worker
assigned to D.H.’s case, and the March 25 order. Based on our review of
those documents, we conclude that Mother failed to make a prima facie
showing of changed circumstances or new evidence in support of her section
388 petition. First, the documentation regarding Mother’s contact with, or
attempts to contact, the Agency social worker had no bearing on D.H.’s
hormone therapy and, in particular, did not include any information as to the
risks and benefits or other factors pertaining to hormone therapy for D.H.
Second, neither D.H.’s February 23 application with its attachments nor the
court’s February 25 order authorizing hormone therapy showed any change
26
in circumstances or new evidence since the court’s February 25 order.
Rather, that information existed prior to or at the time of the February 25
order. That documentation did not show any change in circumstances or new
evidence after February 25. Third, the March 25 order did not show any
change in circumstances or new evidence since the February 25 order.
Rather, it simply showed that Mother continued to oppose hormone therapy
for D.H. (as she had before the February 25 order) and requested an
evidentiary hearing on that issue to be held on May 25. Finally, although
Mother’s section 388 petition asserted that three Agency reports were
attached, the record on appeal shows that those reports were not in fact
attached to her petition and therefore could not, and did not, provide any
support for the allegations in her petition.9 In any event, even if we were to
consider those three Agency reports, we would conclude that none of them
provided support for her allegations that there were changed circumstances
or new evidence since the February 25 order. Although those reports show
that D.H. was experiencing increased isolation and decreased willingness to
participate in therapy, there is nothing in Mother’s petition that would
support a reasonable inference that those issues were in any way caused by
D.H.’s hormone therapy.10
9 Mother’s petition identifies those three reports as ones dated March 25,
2021, May 10, 2021, and May 25, 2021. However, those reports were not, in
fact, attached to her petition.
10 To the extent the Agency’s reports discuss D.H.’s December 2020 use of
prohibited substances, that factor preceded his February 23, 2021 application
and the court’s February 25 order and therefore cannot show changed
circumstances. In addition, it appears that the parties were aware of that
information at the time of the February 25 order and therefore, it was not
new evidence. In any event, there is nothing in the record indicating that use
27
Because Mother elected to proceed by way of a section 388 petition and
failed to carry her burden to make a prima facie showing of changed
circumstances or new evidence since the prior February 25, 2021 order, the
juvenile court properly could, and did, exercise its discretion to summarily
deny her section 388 petition based on that deficiency alone. Nevertheless,
we further conclude that Mother also failed to make a prima facie showing
that her proposed order vacating the February 25 order authorizing hormone
therapy for D.H. would be in his best interests. In particular, although D.H.
appeared to be struggling with his mental health since February 25, as
evidenced by his increased isolation and decreased willingness to participate
in therapy, Mother did not present any evidence to support her allegation,
and instead merely speculates that termination of D.H.’s hormone therapy
would improve those issues. Further, to the extent that Mother’s petition
alleged that she was denied her constitutional right to due process at the
time of the February 25 order, that assertion does not support a reasonable
inference that vacating the court’s authorization of hormone therapy for D.H.
would be in his best interests. Finally, contrary to Mother’s assertion, the
court’s consideration of any change in Mother’s circumstances did not show
that the court failed to consider, and properly weigh, evidence regarding the
change in D.H.’s circumstances as alleged in Mother’s section 388 petition.
Absent affirmative evidence showing otherwise, we presume that the court
was aware of applicable law and properly applied it in summarily denying
her petition. (Evid. Code, § 664 [presumption that official duty has been
regularly performed]; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
of prohibited substances by D.H. was a continuing problem at the time of the
February 25 order.
28
335, 398 (Bryant) [trial court is presumed to have been aware of and followed
applicable law]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 (Stowell)
[same]; Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson) [in absence of
contrary showing in record, all presumptions on appeal are made in favor of
trial court’s action]; Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d
554, 563 (Wilson) [on appeal “it is presumed that the [trial] court followed the
law”]; Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 (Multani)
[appellant has burden to affirmatively show error]; In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux) [judgment or order is
presumed to be correct on appeal and all intendments and presumptions are
indulged in favor of its correctness].) Also, the court’s discussion of Mother’s
circumstances appeared to primarily relate to a separate modification
requested in her section 388 petition, i.e., modification of the prior no-contact
order, and not her request to vacate the February 25, 2021 order authorizing
hormone therapy. Accordingly, we conclude that the court did not abuse its
discretion by summarily denying Mother’s section 388 petition. (Stephanie
M., supra, 7 Cal.4th at p. 318; In re Angel B., supra, 97 Cal.App.4th at p. 460;
In re Zachary G., supra, 77 Cal.App.4th at p. 808.) To the extent that Mother
cites evidence or inferences therefrom that would have supported a contrary
finding by the juvenile court, she misconstrues and/or misapplies the
applicable standard of review.
III
Jurisdiction to Issue Order Authorizing Hormone Therapy
Mother contends that the February 25, 2021 order authorizing gender
affirming hormone therapy for D.H. must be reversed because the court
lacked jurisdiction to issue that order. We disagree.
29
As discussed above, section 362, subdivision (a) provides that the
juvenile court “may make any and all reasonable orders for the care” of a
dependent child “including medical treatment . . . .” (Italics added.)
Likewise, section 369, subdivision (c) provides that if there is no parent
willing to authorize medical or other remedial care or treatment for a
dependent child, “the court may, after due notice to the parent . . . order that
the social worker may authorize the medical . . . or other remedial care for the
dependent child, by licensed practitioners, as necessary.” (Italics added.)
Mother does not assert, nor could she reasonably assert, that the gender
affirming hormone therapy (i.e., testosterone treatment) authorized by the
court for D.H. is not “medical treatment” within the meaning of section 362,
subdivision (a) or section 369, subdivision (c). Rather, she asserts that
section 369, subdivision (c) precluded the court from authorizing D.H.’s
hormone therapy over her objection. In so doing, she misconstrues the plain
language of that statute. Section 369, subdivision (c) expressly authorizes a
juvenile court to authorize or order medical treatment when there is a parent
unwilling to authorize it. Therefore, contrary to Mother’s argument, her
objection to D.H.’s hormone therapy did not divest the court of its jurisdiction
to authorize that therapy. Likewise, to the extent that Mother notes that the
court signed D.H.’s testosterone treatment consent form on a line intended
for parents or guardians, she fails to show that any such technical error
divested the court of its jurisdiction to authorize such treatment or
undermined the validity of its authorization, such that reversal of the
February 25 order is required.
Mother also argues that there was no evidence showing the
circumstances at the time D.H. signed his application and accompanying
consent form or that he understood the information contained in that form
30
(e.g., the risks, benefits, and consequences of testosterone treatment).
However, absent affirmative evidence showing otherwise, the court could
reasonably find that D.H. had read the entire consent form, had an
opportunity to discuss it with, and ask questions of, his treatment providers,
and had an adequate understanding of the risks, benefits, and consequences
of testosterone treatment at the time he signed the consent form indicating
that he wished to proceed with that treatment.11 In addition, contrary to
Mother’s apparent assertion, the court was not required to independently
contact, and discuss with, D.H.’s treatment providers the risks, benefits, and
consequences of the testosterone treatment proposed for D.H. before it could
authorize that treatment and/or sign the consent form.12 Mother does not
cite any authority in support of that assertion. Further, as discussed above,
two health professionals opined that D.H. suffered from gender dysphoria
and that he likely would continue to so suffer unless he received testosterone
treatment.
11 We discuss D.H.’s signature on the consent form simply to refute
Mother’s argument that he did not understand the information in the form.
In so doing, we do not intend to imply that a juvenile, such as D.H., generally
has the legal capacity or authority to consent to such medical treatment.
12 The language in D.H.’s consent form indicating that the signator to the
form confirmed that “[m]y doctor has talked with me about [the risks,
benefits, and consequences of testosterone treatment],” understood the risks
involved, and “had enough opportunity to discuss treatment options with my
clinician,” is clearly directed toward the patient (i.e., D.H.) who signs that
consent form. By signing that form, the court was not making the same
representations as D.H. made, nor was it required to do so in order to
authorize testosterone treatment for D.H.
31
IV
D.H.’s Best Interests
Mother contends that the February 25, 2021 order must be reversed
because the court failed to consider D.H.’s best interests in authorizing
hormone therapy for him and that there is insufficient evidence to support a
finding that such therapy was in his best interests. We disagree.
Citing certain factors listed in In re Phillip B. (1979) 92 Cal.App.3d 796
that a court should consider in authorizing medical treatment for a
nondependent child, Mother argues that the juvenile court should have
considered those factors in deciding whether to authorize medical treatment
for the dependent child in this case (i.e., D.H.). In particular, citing In re
Phillip B., Mother argues that the court should have considered the
seriousness of the harm that D.H. was suffering or the substantial likelihood
that he would suffer serious harm, any recommendations by health
professionals in support of or advising against such treatment, the risks
involved in medically treating D.H., D.H.’s expressed preferences, and,
ultimately, whether the medical treatment was in D.H.’s best interests. (See
In re Phillip B., at p. 802.) However, Mother merely speculates that the court
did not consider each of those factors. Absent affirmative evidence showing
otherwise, we presume that the court was aware of, and properly considered,
all relevant factors in determining whether to authorize hormone therapy for
D.H. (Evid. Code, § 664; Bryant, supra, 60 Cal.4th at p. 398; Stowell, supra,
31 Cal.4th at p. 1114; Jameson, supra, 5 Cal.5th at p. 609; Wilson, supra, 34
Cal.3d at p. 563; Multani, supra, 215 Cal.App.4th at p. 1457; Arceneaux,
supra, 51 Cal.3d at p. 1133.) Mother has not carried her burden on appeal to
show that the court did not consider all relevant factors before issuing its
February 25, 2021 order authorizing D.H.’s hormone therapy. Further, to the
32
extent that Mother argues that there is insufficient evidence to support a
finding that hormone therapy was in D.H.’s best interests, she misconstrues
and/or misapplies the substantial evidence standard of review. In applying
that standard of review, we consider the evidence, and make all reasonable
inferences therefrom favorably to support the court’s order, and disregard
contrary evidence. (In re S.B. (2008) 164 Cal.App.4th 289, 297–298.) By
primarily citing evidence and inferences therefrom in favor of her position
opposing hormone therapy for D.H., Mother misapplies the substantial
evidence standard of review and fails to carry her burden on appeal to show
that there is not substantial evidence supporting the February 25 order.
V
March 25 Order
Mother contends that the March 25, 2021 order at the initial post-
permanency planning hearing must be reversed because the court
erroneously believed that it had no authority to change the February 25 order
authorizing hormone therapy for D.H.
A
At the March 25, 2021 hearing, Mother requested that the visiting
judge (San Diego County Superior Court Judge Yvonne E. Campos) set for
trial, inter alia, the issue of her opposition to hormone therapy for D.H. The
court set a contested hearing on that and other issues for May 25. The
Agency’s counsel then represented to the court that the Agency intended to
proceed with D.H.’s hormone therapy, which had been authorized by the
court in its February 25 order, and requested the court’s confirmation that it
was not changing that prior order. In response, the court stated: “I am not
here as a co-judicial officer to Judge Zapanta to change any prior orders. I
understand you all may relitigate that in front of her at the next contested
33
hearing [i.e., at the May 25 hearing]. But for today’s purposes, I am not
making or changing that order.”
B
Mother argues that the record shows that at the March 25 hearing, the
court misunderstood its authority under section 385 to change a prior order
and, as a result, the March 25 order must be reversed. In so arguing, Mother
correctly notes that a juvenile court has broad authority under section 385 to
change prior orders. (See, e.g., In re J.P. (2020) 55 Cal.App.5th 229, 241,
243.) Section 385 provides: “Any order made by the court in the case of any
person subject to its jurisdiction may at any time be changed, modified, or set
aside, as the judge deems meet and proper, subject to such procedural
requirements as are imposed by this article.” However, Mother incorrectly
interprets the record as showing that the court misunderstood its authority
under section 385 or otherwise to change a prior order. Although the court
stated at the March 25 hearing that it was “not here as a co-judicial officer to
Judge Zapanta to change any prior orders,” that statement, contrary to
Mother’s assertion, did not indicate that the court was unaware of its
discretion under section 385. Rather, our review of the record supports a
conclusion that the court presumably was aware of its section 385 authority,
but nevertheless exercised its discretion in the circumstances of this case to
not change the February 25 order, particularly in light of the fact that it had
set a May 25 date for an evidentiary hearing on the issue of hormone therapy
for D.H., among other issues. (Evid. Code, § 664; Bryant, supra, 60 Cal.4th at
p. 398; Stowell, supra, 31 Cal.4th at p. 1114; Jameson, supra, 5 Cal.4th at p.
609; Wilson, supra, 34 Cal.3d at p. 563; Multani, supra, 215 Cal.App.4th at
p. 1457; Arceneaux, supra, 51 Cal.3d at p. 1133.)
34
Further, as the Agency notes, the record does not show that Mother
requested at the March 25 hearing that the court change or vacate the
February 25 order. Instead, Mother requested an evidentiary hearing on the
issue of D.H.’s hormone therapy and accepted the court’s setting of that
hearing on May 25. Mother does not cite any language in the reporter’s
transcript for the March 25 hearing that shows that she requested that the
court change or vacate the February 25 order. Absent any such request,
Mother cannot reasonably argue on appeal that the court erred by not
changing or vacating that prior order at the March 25 hearing. Accordingly,
Mother has not carried her burden on appeal to show that the court erred at
the March 25 hearing or that its March 25 order must be reversed as a result.
DISPOSITION
The orders are affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
DO, J.
35