Filed 5/17/23 In re W.R. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re W.R. et al., Persons Coming B318381, B322631
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 18LJJP00452B-C
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.R.,
Defendant and Appellant.
In re P.R., A Person Coming B318385
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 18LJJP00395B
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.R.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County. Michael C. Kelley and Donald A. Buddle, Jr., Judges.
Affirmed as to case No. B318381. Affirmed in part, reversed in
part and remanded with instructions as to case Nos. B318385
and B322631.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louis, Principal
Deputy County Counsel, for Plaintiff and Respondent.
**********
These consolidated appeals are the latest we resolve
concerning father and his dependent children. (See In re W.R.
(Aug. 20, 2021, B308881) [nonpub. opn.]; In re W.R. (Aug. 20,
2020, B304013, B304856) [nonpub. opn.]; In re W.R. (Aug. 6,
2019, B292121, B294990) [nonpub. opn.]; In re P.R. (Sept. 16,
2019, B295642) [nonpub. opn.]; In re P.R. (Aug. 2, 2019, B293713)
[nonpub. opn.].)1 Father here challenges (i) the orders denying,
without an evidentiary hearing, a trio of petitions under Welfare
and Institutions Code2 section 388—one each concerning his now
11- and 13-year-old sons and the other his 5-year-old son, P.R.;
and (ii) the visitation provisions of the orders appointing legal
guardians for the same three boys. We affirm denial of the
1 We grant father’s unopposed requests for judicial notice of
our opinions in In re W.R., supra, B308881 and In re P.R., supra,
B295642. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We take
judicial notice of the other opinions on our own motion. (See, e.g.,
Estate of Dito (2011) 198 Cal.App.4th 791, 795, fn. 3 [taking
judicial notice, on court’s own motion, of unpublished opinion in
prior appeal in same matter].)
2 Undesignated statutory references are to the Welfare and
Institutions Code.
2
section 388 petitions and remand to the juvenile court for entry of
revised guardianship orders specifying the duration and
frequency of visits to which father is entitled.
BACKGROUND
We summarize background facts from our earlier opinions.
Father has an extensive history with the Los Angeles
County Department of Children and Family Services
(Department), with numerous referrals in 2010, 2013, 2016, 2018,
and 2020. All referrals related to drugs and domestic violence.
Father also has an extensive history with law enforcement,
with numerous arrests and convictions (some resulting in prison
time) spanning from 1992 to 2020.
Father also has a history of mental health issues. He has
been diagnosed with bipolar disorder and schizophrenia. Doctors
have struggled to treat these conditions, owing at least in part to
father’s failure to comply with doctors’ orders regarding
treatment. Father has a history of refusing to take some
medications and abusing others.
These proceedings began following referrals in 2018. The
initial referral was in May of that year based on an incident of
domestic violence between father and P.R.’s mother, O.E.
P.R. and O.E.’s daughter from another relationship were present.
O.E. was father’s girlfriend at the time. O.E. is not a party to
this appeal, and the disposition as to her daughter is not at issue,
so we omit details about her except where relevant.
The second referral came about a month later, in June
2018, based on another incident of domestic violence between
father and O.E. P.R. and father’s three other children, including
the 11- and 13-year-old sons involved here, were in the home for
this incident. Because they share common initials with other
3
parties involved, we refer to P.R.’s half siblings by their current
age, or, collectively, as P.R.’s half brothers. The mother of these
three children has not been in their lives for years and is not a
party to this appeal. The disposition as to the eldest of these
children, who is now 18, is not at issue in this appeal so we omit
details about him except where relevant.
In June 2018, just days after the second referral, the
Department filed a petition concerning P.R. and his half sister
against father and O.E. P.R. was released to father and O.E.,
subject to family maintenance services and a no-contact order
between the parents. At the time, O.E. was also subject to a
criminal protective order prohibiting contact with father
stemming from the June 2018 domestic violence incident.
In July 2018, the juvenile court sustained the petition as to
P.R. based on the May and June 2018 domestic violence incidents
that led to the referrals. P.R. remained released to father at that
time.
Around the same time, the Department filed a petition
regarding P.R.’s half brothers. The juvenile court sustained that
petition about a month later, in August 2018, based on the
history of domestic violence as well as father’s mental health and
prescription drug abuse. Like P.R., his half brothers remained
released to father at that time. The juvenile court ordered
further services for father.
The Department learned in September 2018 that father
and O.E. had been violating the juvenile and criminal court
orders restricting their contact. The Department filed a
subsequent petition against father and O.E. in P.R.’s case based
on the parents’ violations of the criminal court’s protective order,
which the juvenile court sustained. In October 2018, P.R. and his
4
half brothers were placed in foster care. P.R. was placed with
maternal great-grandmother. His half brothers were placed with
nonrelative foster parents.
Around the same time the children were placed in foster
care, father underwent an Evidence Code section 730 evaluation,
performed by Dr. Sheila Morris. Dr. Morris diagnosed father
with schizoaffective disorder, bipolar type. She expressed
concern about his ability to care for his children as he was not
taking his medications. She recommended counseling,
medication, parenting and anger management classes, and a
follow-up examination in six months.
The Department relied on Dr. Morris’s report in defeating
father’s December 2018 section 388 petition to regain custody of
P.R.
Father took the classes and underwent counseling
Dr. Morris recommended but did not take any psychotropic
medications. When she reevaluated him in April 2019, father’s
diagnosis remained the same but he showed signs of
improvement, alleviating Dr. Morris’s concerns about his ability
to parent. In May 2019, P.R.’s half brothers were returned to
father’s care, under the Department’s supervision and subject to
certain conditions imposed by the juvenile court. Among those
conditions were that father was to submit to random and on-
demand drug testing, participate in family preservation services,
and cooperate in getting individualized education plans for the
children.
After regaining custody of P.R.’s half brothers, father’s
cooperation with the Department dropped off significantly. He
stopped returning phone calls, failed to submit to drug testing,
5
moved without notifying the Department, and refused to disclose
where he was staying.
The 11- and 13-year-old boys also began having more
trouble at school. They were performing so poorly, both
academically and behaviorally, that the school’s principal asked
the Department for help. The principal reported that father
refused to cooperate with the school in getting them services.
The Department met with the children at school, which angered
father. Father took the children from school and thereafter
frustrated the Department’s efforts to arrange a home visit.
Concerned for the children’s safety, the Department sought and
obtained an order detaining them in October 2019. The 11- and
13-year-old boys were again placed in foster care; the 18-year-old
was allowed to remain in father’s care.
The Department filed a supplemental petition alleging
father had failed to make the children available for Department
visits and failed to participate in drug testing and family
preservation services. It also filed a subsequent petition alleging
father refused to cooperate with the school to obtain mental
health services for the 11- and 13-year-old boys. In December
2019, the juvenile court dismissed the supplemental petition
without prejudice, sustained the subsequent petition, and
ordered the 11- and 13-year-old boys removed from father. It
further ordered father to participate in a new Evidence Code
section 730 evaluation, on-demand drug testing, parenting
classes, and individual counseling. Two months later, upon
request of counsel for the boys based on father’s refusal to allow
the boys to get needed help at school, the juvenile court entered
an order limiting father’s educational rights.
6
Around the same time, the Department was noting issues
with father regarding P.R. Father’s visits had been liberalized to
unmonitored, but the Department requested that they revert to
monitored based on concerns that father was generally
uncooperative, refused to provide information about his mental
health counseling and medications, and was skipping drug tests.
Despite father’s lack of compliance with his obligations, P.R. was
noted to be “happy in [father’s] presence.” The juvenile court
ordered four monitored visits to revert to unmonitored public
visits if the monitored visits went well.
Father underwent the next court-ordered Evidence Code
section 730 evaluation in May 2020, again with Dr. Morris. She
opined that father had “several noticeable regressions” since his
last evaluation, including “increased grandiosity,
circumstantiality and tangentiality, with delusion.” Although
father reported he was seeing a psychiatrist twice per month, and
she had prescribed him medication, he was not taking the
medication. Father’s diagnosis for schizoaffective disorder
remained the same, which is a lifelong condition requiring
treatment. Dr. Morris believed father to be “less psychologically
stable” than he had been at his last evaluation. She was
concerned that father’s “unmet psychiatric needs, lack of
treatment, denial” are “concerning risk factors that . . . father
may encounter future episodes and decompensation.” She felt
father had “minimal to poor parenting capacity.” Dr. Morris
recommended father receive therapy at least once per week, and
monthly medication monitoring. She believed father should
continue to engage in reunification services.
That same month, the 11- and 13-year-old boys ran away
from their placement. When asked why they ran away, they
7
reported father had told them to leave if they “don’t like
something.” It later came to light that, on more than one
occasion, father told them to run away from their placement. The
caregiver reported that contact with father seemed to cause the
boys anxiety. The boys reported that father also told them to
misbehave in their placement. Both boys wanted to stay with
their current foster mother.
At the same time, P.R. was “thriving and doing well” in the
home of maternal great-grandmother. Father was speaking to
P.R. by phone on a weekly basis. A May 2020 report in P.R.’s
case noted that father was participating in counseling but still
refusing to confirm whether he was taking prescribed
psychotropic medications.
A few months later, however, father’s telephone visitation
had become more sporadic, dropping to once a week or once every
other week. When the Department questioned father about this
in October 2020, he expressed a lack of interest in visiting with
P.R. He told the Department to “do whatever you want and
whatever you think is best for him. . . . I’m not gonna fight over
him.”
Also in October 2020, father sought return of the 11- and
13-year-old boys at their section 366.21, subdivision (e) six-month
review hearing. The Department opposed this effort. A social
worker testified that father had completed his drug program,
parenting classes, and domestic violence classes but was not yet
participating in weekly counseling, instead going just once or
twice per month. Father testified he was then taking two
prescribed psychotropic medications but had not seen a therapist
for about four months because his last one made unprofessional
comments at his last appointment.
8
About two months later, in P.R.’s case, the juvenile court
returned P.R. to his mother, O.E., subject to various conditions.
These included that O.E. live in the home of maternal great-
grandmother. P.R. was detained again just a few months later,
in March 2021, after the Department learned mother violated
this condition.
Shortly thereafter, the Department filed an amended
subsequent petition against father alleging he had unresolved
mental health issues. The juvenile court sustained this petition
in May 2021 and denied further reunification services. By that
time, as the Department noted, father had received almost three
years of combined family reunification, family maintenance,
and/or enhancement services. The juvenile court ordered
monitored visitation for father three times per week for
three hours per visit and set a section 366.26 permanency
planning hearing for September 2021.
In P.R.’s half brothers’ case, the juvenile court conducted a
contested 12-month review hearing which concluded in June 2021
with findings that father had a long history of untreated
psychological issues that placed the boys at substantial risk of
harm. The court noted father was not undergoing the amount of
counseling recommended, that his mental health had recently
regressed, and that he was inconsistent in taking medication. It
gave a litany of examples of how father’s “impaired perception of
the real world” put his children at risk. The court noted father
did not understand the children’s grade levels. He thought they
did not need medication or therapy because he could serve as
their therapy. He felt school was unnecessary because he could
be their teacher and that, at the very least, they should be
removed from school if other children interfered with them.
9
The court also noted instances where the risk father posed
to his children had actually manifested. For example, acting on
his advice, the boys stole $1,000 from their caregiver. Also,
acting on father’s advice, one of the boys feigned a suicidal act.
The court found the boys were happy in their current placement
but stated a mild preference to live with their father. However,
the boys also at times did not even want to speak to father when
he called. The juvenile court terminated reunification services
for these boys as well and set a section 366.26 permanency
planning hearing for October 2021.
The Department’s September 2021 report filed in advance
of P.R.’s scheduled section 366.26 hearing reflected that P.R. was
doing well in the care of maternal great-grandmother. Though
father was entitled to in-person visits, the report reflected that
father visited P.R. by phone only. The scheduled section 366.26
hearing was rescheduled to November 2021 due to a stay granted
by this court.
The section 366.26 hearing scheduled for the 11- and
13-year-old boys in October 2021 was similarly continued for
notice to the parents and further assessment of their permanent
plan.
The Department’s report in advance of P.R.’s rescheduled
section 366.26 hearing reflected that father was continuing to
visit with P.R. by remote means only notwithstanding his right to
have in-person visits. P.R. expressed a preference to live with
maternal great-grandmother, where he was continuing to do well
and had lived for “most of [his] li[fe].” The juvenile court ordered
legal guardianship by maternal great-grandmother as P.R.’s
permanent plan.
10
On December 28, 2021, father filed a section 388 petition as
to P.R. requesting a change of the juvenile court’s May 2021 order
terminating reunification services and setting the section 366.26
hearing. The changed circumstances father identified were that
he had “addressed all the issues that . . . brought th[e] matter
before the [c]ourt” by “previously participat[ing] in monthly
counseling services [in 2019 and 2020],” “attending mental health
services with the Department of Mental Health . . . since
December 02, 2020,” and “consistently maintain[ing] phone and
in-person visits with [P.R.].” Father contended returning P.R. to
him would be in P.R.’s best interest because father is capable of
“provid[ing] him with care, love, and familial support.”
The court scheduled a hearing on whether to grant an
evidentiary hearing.
The Department’s December 2021 status review report in
the 11- and 13-year-old boys’ case reflected that father had not
had recent contact with the boys despite being entitled to
three in-person visits per week. Father had not provided a
monitor for visits. Both boys said they liked living with their
current caregiver, where they had been placed for two years.
They were doing well and receiving school and mental health
services that father had previously refused to approve.
On December 28, 2021, father filed section 388 petitions as
to the 11- and 13-year-old boys requesting a change of the
juvenile court’s June 2021 order terminating reunification
services and setting the section 366.26 hearing. These petitions
were substantially similar to father’s petition relating to P.R.
Father contended returning the boys to him would be in their
best interest because of their “undeniable bond” with father, that
father “has always been a caring and loving father, that has put
11
[the boys’] well-being in the forefront,” and the boys love father
and have expressed a desire to live with him.
On January 26, 2022, the juvenile court conducted a
combined hearing on whether to conduct an evidentiary hearing
on father’s three section 388 petitions. It concluded that father
had failed to make a prima facie case of changed circumstances or
that modification of the prior orders would be in the children’s
best interests.
Father timely appealed on February 3, 2022.
A few months later, in April 2022, the juvenile court
conducted a section 366.26 hearing for P.R. and appointed
maternal great-grandmother as P.R.’s legal guardian. At the
hearing, father objected to the plan of legal guardianship. In the
alternative, he requested that the guardianship paperwork
include visitation for father. In support, father noted concern
that maternal great-grandmother had denied him, and would
continue to deny him, visitation. The order signed by the court
provided “Mother and Father to have monitored visits” without
stating any frequency or duration.
Father appealed on April 18, 2022.
In July 2022, the juvenile court conducted a section 366.26
hearing for the 11- and 13-year-old boys and appointed their
caregiver as their legal guardian. As he did at P.R.’s
section 366.26 hearing, father objected to the plan of legal
guardianship and alternatively requested that the guardianship
paperwork specify his visitation rights to address his concerns
about caregiver willingness to permit visitation. The order
signed by the court provided “Monitored visitation with Father
monitored by a paid professional paid by Father[] or mutually
agreed upon monitor.”
12
Father appealed on August 10, 2022.
DISCUSSION
1. Mootness
As a preliminary matter, we note that, as of this writing,
the juvenile court has terminated jurisdiction over all children
involved in these appeals. The circumstances under which
termination of juvenile court jurisdiction renders a pending
dependency appeal moot are the subject of some disagreement.
(See In re S.G. (2021) 71 Cal.App.5th 654, 664-665.) Neither
party to the appeal has argued that these appeals are moot. We
exercise our discretion to consider their merits. (In re D.P. (2023)
14 Cal.5th 266, 282 [“Even when a case is moot, courts may
exercise their ‘inherent discretion’ to reach the merits of the
dispute”].)
2. The Trial Court Did Not Abuse Its Discretion in
Denying the Section 388 Petitions Without a Hearing
Section 388, subdivision (a)(1), authorizes the parent of a
dependent child to, “upon grounds of change of circumstance or
new evidence,” petition the juvenile court “for a hearing to
change, modify, or set aside any order of court previously made.”
(Ibid.) “The parent seeking modification must ‘make a prima
facie showing to trigger the right to proceed by way of a full
hearing. [Citation.]’ [Citations.] There are two parts to the
prima facie showing: The parent must demonstrate (1) a genuine
change of circumstances or new evidence, and that (2) revoking
the previous order would be in the best interests of the children.”
(In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “To support a
section 388 petition, the change in circumstances must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)
“[A] primary consideration in determining the child’s best
13
interest is the goal of assuring stability and continuity.” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
“A juvenile court may summarily deny a section 388
petition without an evidentiary hearing, but ‘a petition must be
liberally construed in favor of its sufficiency [citation] and a
hearing may be denied only if the application fails to reveal any
change of circumstance or new evidence which might require a
change of order.’ ” (In re R.A. (2021) 61 Cal.App.5th 826, 836; see
also § 388, subd. (d); Cal. Rules of Court, rule 5.570(a) [“A
petition for modification must be liberally construed in favor of
its sufficiency”].)
Conclusory allegations in a petition or its supporting
declarations are insufficient to make the required prima face
showing. “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.)
“In determining whether the petition makes the necessary
showing, the court may consider the entire factual and
procedural history of the case.” (In re Justice P. (2004)
123 Cal.App.4th 181, 189.)
We review the juvenile court’s decision not to hold a
hearing for an abuse of discretion. (In re G.B. (2014)
227 Cal.App.4th 1147, 1158.)
Father’s section 388 petitions fail to make a prima facie
case of changed circumstances or new evidence. The information
contained in the petitions was either before the juvenile court
14
when it entered the orders father sought to modify or is too
conclusory to be meaningful.
For example, father states that “[s]ince the court
terminated my Family Reunification Services, I have completed
Parenting Classes, Domestic Violence Classes, random and on
demand testing, Individual Counseling, and Mental Health
services.” He then refers to (i) mental health services he received
in 2019 and 2020, until stopped due to the COVID-19 pandemic;
and (ii) those he started at the end of 2020 with the Department
of Mental Health, and continued through the time he filed the
petitions. He does not describe any other programs. Father
avers that by completing his programs he has “learned the
importance of humility, wisdom, and self-discipline.”
Father ignores that all services referenced in his
section 388 petitions were known to the juvenile court prior to
entry of the orders father sought to modify. These proceedings
began in 2018. Father completed domestic violence counseling,
parenting classes, and individual counseling to address case
issues not later than January 2019, a fact disclosed to the court
not later than May 2019 and repeatedly thereafter. He also
completed a drug program, and perhaps additional parenting and
domestic violence classes, not later than October 2020. Father’s
participation in mental health services in 2019 and 2020 was
known to the court not later than May 2020. And father’s
ongoing mental health services with the Department of Mental
Health were known to the court not later than May 2021.
The only services disclosed in his section 388 petitions that
father received after the date of the orders he sought to modify
were more sessions with the Department of Mental Health that
had begun months before the orders. These were once-monthly
15
sessions. That father may have attended about five more
sessions of mental health therapy that had been ongoing at the
time of the subject orders is not a substantial change in
circumstances. Moreover, father’s petitions do not address two
major concerns the court had at the time of the orders—that
father had refused to undergo weekly, as opposed to monthly,
therapy sessions and take psychotropic medications as Dr. Morris
recommended. Father’s petitions make no mention of taking any
medications.
Other facts father refers to in his section 388 petitions were
similarly before the juvenile court when it entered the orders he
sought to modify. For example, then, and as of the petitions,
father was having regular phone visits with the 11- and 13-year-
old boys. As to P.R., it is unclear from the record how much
father was visiting him at the time of the order. But it is equally
unclear from father’s petition when he began to “maintain[]
consistent quality visits with [P.R.] whether in-person or via
phone.” This ambiguous claim is devoid of any meaningful detail,
including whether those visits father “maintained” were taking
place in May 2021, when the juvenile court entered the order
father petitioned to change, and how frequently the visits were
occurring.
Father also notes in the petitions that he has “stable
housing and income.” Father’s housing situation had been
stabilized at least as far back as November 2020 when he tried to
coax the 11- and 13-year-old boys home from their foster
placement with promises that they could stop going to school and
play Xbox all day at father’s new “nice big four bedroom house.”
His housing was therefore not a changed circumstance.
16
In short, nothing on the face of father’s section 388
petitions states a new fact or circumstance that, if proven, would
necessarily sustain a favorable decision on the petitions. (See In
re Zachary G. (1999) 77 Cal.App.4th 799, 806 [“[t]he 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”].) The juvenile court did not abuse its
discretion in declining to hold an evidentiary hearing on the
petitions.
3. The Trial Court Abused Its Discretion in Ordering
Visitation Without Specifying Frequency or Duration
When a juvenile court orders legal guardianship as a
dependent’s permanent plan, it must “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.”
(§ 366.26, subd. (c)(4)(C).) When the court makes a visitation
order, it cannot delegate authority to a third party to decide
whether visitation will occur. (In re M.R. (2005) 132 Cal.App.4th
269, 274.) The only authority the court can delegate is the time,
place, and manner in which visits will occur. (Ibid.)
We review visitation orders in connection with the
appointment of a legal guardian for abuse of discretion. (In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.)
Here, the juvenile court failed to express father’s visitation
rights in terms of frequency and duration, effectively leaving it to
the appointed legal guardians to decide whether visits will occur
at all. This amounts to an abuse of discretion. (See, e.g., In re
Rebecca S., supra, 181 Cal.App.4th at p. 1314 [visitation order
was abuse of discretion because “leaving the frequency and
17
duration of visits within the legal guardian’s discretion allows the
guardian to decide whether visitation actually will occur”].) The
Department concedes error in the visitation terms of all three
children’s guardianship orders for this reason.
Father asserts that “[t]he matter should be reversed and
remanded for a new section 366.26 hearing, or at a minimum to
specify the frequency and duration of father’s visits.” We find no
reason to remand for a new section 366.26 hearing.
DISPOSITION
The juvenile court’s denials of father’s three section 388
petitions are affirmed.
The juvenile court’s guardianship orders dated April 15,
2022 and July 28, 2022 are reversed only as to the terms of
father’s visitation rights. These matters are remanded to the
juvenile court for the limited purpose of fashioning appropriate
visitation orders that include, at a minimum, the frequency and
duration of visits to which father is entitled. In all other
respects, the guardianship orders are affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J. VIRAMONTES, J.
18