Filed 6/22/21 In re MaryJane L. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re MaryJane L., a Person Coming B307501
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK23383)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSICA L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff
and Respondent.
Appellant Jessica L. (mother) appeals from orders of the juvenile
court summarily denying her Welfare and Institutions Code section 388
petition for a change of order over her child, MaryJane L., and
terminating her parental rights.1 Mother contends that the court
abused its discretion by summarily denying her section 388 petition
without holding an evidentiary hearing. Finding no abuse of discretion,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention, Jurisdiction, and Adjudication
In June 2017, the Los Angeles County Department of Family and
Children Services (DCFS) filed a section 300 petition on behalf of
Victoria L. (born Jan. 2008), MaryJane L. (born Sept. 2012), and K.C.
(born March 2016), based on mother’s “paranoia and bizarre behaviors,”
and her history of marijuana and methamphetamine use.2 According to
maternal grandfather, mother had moved the children into different
homes after saying the devil and witches were after them.
The children were recovered in July 2017 with the assistance of
Edmundo L., a companion of mother who had provided shelter for her
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 DCFS subsequently filed two amended petitions to add accusatory
language with respect to father, Kelvin C., who is not a party to this appeal.
Based on the limited issues presented in her appellate briefs, we previously
dismissed mother’s appeal as to Victoria L. and K.C. We limit our recitation
of the facts to MaryJane, the only child subject to this appeal.
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and the children. Days after the children were released to mother
under a court-approved safety plan, mother informed DCFS that she
could not secure adequate housing. The court removed the children and
placed them with paternal grandmother, Maria C., with unmonitored
weekly visitation ordered for mother. After the August 2017 detention
hearing, mother did not visit the children or assist them with school,
medical care, clothing, or food.
In several reports submitted in September and October 2017,
DCFS reported that MaryJane cried when mother did not visit. In her
own interview, mother admitted that she had seen a psychiatrist in
2015 for depression and anxiety. When informed that maternal
grandfather wished to visit the children, mother alleged she had been
physically and sexually abused by him as a child.3 She added, “I would
never put trust for my side of my family” and would “not trust her own
maternal relatives to care for her children.”
In May 2018, mother’s therapist reported that she had diagnosed
mother with post-traumatic stress disorder (PTSD) due to mother’s
reports of sexual abuse. The therapist provided mother with assistance
twice per month.
At the adjudication hearing on August 10, 2018, the court
sustained two section 300, subdivision (b) counts as to mother, ordered
the children removed, and ordered mother to participate in
3 Maternal grandparents denied the allegations and reported that
mother had made rape allegations against others in the past.
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reunification services and a psychiatric evaluation.4 The court granted
mother monitored visitation.
2. Reunification and Permanency Planning
DCFS reported that between August 2018 and February 2019,
mother visited the children sporadically because of her unstable work
schedule. When mother visited with the children, MaryJane tended to
disregard Maria’s guidance. Due to her young age, MaryJane idolized
mother; “regardless of any past actions, she wants the mother in her
life.” As of February 2019, mother had not enrolled in any drug or
alcohol program, she often failed to submit to drug testing, and she
refused to provide DCFS with a home address. Mother agreed that
adoption by Maria was the best permanent plan moving forward.
Mother agreed to terminate her reunification services at the six-
month review hearing on February 8, 2019. The court set, then
continued, the section 366.26 hearing to August 26, 2020.
The court received the results of mother’s psychiatric evaluation
on February 27, 2019. The evaluation stated that mother met the
4 The court sustained b-1 and b-2 counts based on mother’s mental and
emotional problems, and her history of marijuana use, each of which placed
the children at risk of serious physical harm and damage. The court struck
language regarding mother’s use of methamphetamine.
Mother was ordered to participate in the following reunification
services: full drug/alcohol program with after care, weekly random or on-
demand drug/alcohol testing; parenting education; mental health counseling;
a psychological assessment; a psychiatric evaluation; and individual
counseling to address sexual abuse and protective parenting.
4
criteria for PTSD based on reported childhood abuse. Some of the
symptoms mother exhibited were flashbacks, anxiety and vigilance,
negative cognitions about the intentions of others, and avoidance of
situations or people that reminded her of prior trauma. Mother had
last seen a therapist in August 2018, and said that when she sought to
confide in her cousin about her past abuse, the cousin “told everyone in
the family that I was crazy and that I was making up stories.” The
evaluation recommended the resumption of treatment for PTSD, as well
as future evaluations by a treating psychiatrist if mother displayed
signs of mood or anxiety disorder. Given the possibility that mother
was not forthcoming about her marijuana use, the evaluation did not
rule out the possibility that mother suffered from “Cannabis Use
Disorder.”
In a section 366.26 report and addendum report filed on June 7,
2019, DCFS reported that Victoria, MaryJane, and K.C. were
adoptable, Maria wished to adopt the children, and Maria had been
approved as a resource family. Meanwhile, mother’s visits had been
inconsistent and unpredictable. Mother had recently given birth to her
fourth child, M.L., and the child had been removed under a sustained
section 300 petition based on mother’s PTSD diagnosis, substance abuse
history, and her history of domestic violence with M.L.’s father,
Edmundo.
Mother was arrested on August 26, 2019, for trafficking 16.5
pounds of heroin and 25 grams of cocaine into the United States from
Mexico. Mother used her own car to smuggle the drugs, and was
arrested alongside Edmundo’s cousin, who admitted to police that he
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had previously smuggled drugs with mother across the border.5 Mother
was held in an Arizona detention facility until October 2019, when she
was released on pretrial supervision. If convicted, mother was looking
at a significant prison sentence. In April 2020, DCFS was informed
that mother would soon have to turn herself into custody. At that point
in time, mother had not been forthcoming about her criminal case, and
had not made telephonic or in-person contact with the children.
The children continued to live comfortably in Maria’s home. Both
Victoria and MaryJane looked forward to moving into a bigger home
with Maria’s family, and though MaryJane missed mother, she and her
siblings stopped inquiring about mother’s whereabouts. MaryJane, who
had received wraparound services, had met her therapeutic goals and
was no longer in therapy.
3. Section 388 Petition and Section 366.26 Hearing
On August 24, 2020, mother filed a section 388 petition requesting
reinstatement of reunification services or placement of MaryJane (and
her other children) in her care.6 Attached to the petition was a letter
from mother to the DCFS grievance department wherein mother stated
that she had a permanent place of residence in her grandparents’ home,
5 The Department of Homeland Security reported that between May
2018 and August 2019, mother had crossed the United States and Mexico
border 22 times, including several crossings with Edmundo and his cousin.
6 Mother filed three separate section 388 petitions on behalf of Victoria,
MaryJane, and K.C.
6
which had an extra room for the children. Despite the possibility of
incarceration, mother was exploring a court-ordered program that
would enable her to stay at home and continue therapy, drug testing,
and other programs. If she were incarcerated, mother had “a placement
and safety plan where my children will reside with family until my
return.” Mother alleged she had completed parenting classes, domestic
violence victim group therapy, drug testing, and individual therapy and
drug counseling.
Also attached to mother’s petition were certificates of completion
for parenting education in June 2019 and domestic violence awareness
education in July 2019, and an August 2020 letter from an officer with
the United States Probation and Pretrial Services. The probation
officer reported that mother was “currently under pretrial supervision
[and] is currently participating in outpatient mental health services,
outpatient substance use treatment, and is submitting to drug testing.
[Mother] is actively participating and currently in good standing with
her treatment.”
At the section 366.26 hearing on August 26, 2020,7 the court took
judicial notice of all sustained petitions, case plans, reports, orders, and
findings. Proceeding to mother’s section 388 petition, counsel for
mother argued that mother had established a prima facie case based on
7 At the hearing, the court first considered mother’s section 388 petition
as to M.L, after which it terminated mother’s reunification services.
Incorporating its reasons for denying mother’s petition as to M.L., the court
then proceeded to hear mother’s petitions as to Victoria, MaryJane, and K.C.
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her completing parenting education and domestic violence classes,
testing clean four times on recent request, and being in good standing
with her probation officer. Counsel argued that mother’s good-standing
status constituted prima facie evidence regarding mother’s continuation
of mental health services, substance abuse counseling, and drug testing.
In response, DCFS noted that mother had not visited the children
consistently, and had either failed to engage in individual counseling or
did not provide an update on her progress.
The court denied mother’s section 388 petition. In doing so, the
court found mother had not established a prima facie showing of
changed circumstances. Despite her ongoing issues with mental health
and stability, mother had not provided any information on the therapy
she was receiving through pretrial services. Mother also continued to
have contact with Edmundo between November 2019 and February
2020 despite an ongoing court order protecting her from Edmundo.8
The court also found that mother had failed to establish how the
requested change was in MaryJane’s best interest, as the child had
been living in a stable placement with a caregiver willing to adopt the
child.
Proceeding to the section 366.26 hearing, the court found that
mother had not established a parental bond, and that MaryJane would
suffer if returned to her care. Finding no exception to adoption, the
8 The record on appeal does not include any petitions, reports, or findings
with respect to M.L.
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court terminated mother’s parental rights over MaryJane, and
designated Maria as the child’s prospective adoptive parent.
Mother filed a timely notice of appeal.
DISCUSSION
Mother’s asserts the trial court abused its discretion by summarily
denying her section 388 petition without holding an evidentiary
hearing. She contends her petition established a prima facie showing of
changed circumstances, and that reunifying with MaryJane was in the
child’s best interest. We disagree.
1. Governing Law and Standard of Review
Section 388 provides for modification of juvenile court orders when
the moving party can demonstrate (1) a change of circumstance or new
evidence, and (2) that the requested change is in the child’s best
interests. (§ 388, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295,
317 (Stephanie M.).) The juvenile court must hold an evidentiary
hearing on a section 388 petition only if the moving party makes a
prima facie showing of both elements. (See Cal. Rules of Court, rule
5.570(d)(1), (f); In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re G.B.
(2014) 227 Cal.App.4th 1147, 1157 (G.B.).)
While courts are to liberally construe section 388 petitions, “‘[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.’ [Citations.] The petition may not consist of
‘general, conclusory allegations,’” and should include declarations or
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other attachments demonstrating the showing to be made at an
evidentiary hearing. (In re Samuel A. (2020) 55 Cal.App.5th 1, 7
(Samuel A.).) In other words, a prima facie case “is not made . . . if the
allegations would fail to sustain a favorable decision even if they were
found to be true at a hearing.” (G.B., supra, 227 Cal.App.4th at p. 1157;
see ibid. [a “prima facie case is made if the allegations demonstrate that
[the] two elements are supported by probable cause”].)
We review the denial of a section 388 petition for an abuse of
discretion. (Stephanie M., supra, 7 Cal.4th at p. 318; Samuel A., supra,
55 Cal.App.5th at p. 7.) “‘“The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or
more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
trial court.”’ [Citations.]” (Stephanie M., supra, at pp. 318–319.)
2. Analysis
When considering whether a section 388 petition has made a
prima facie showing, courts consider the entire factual and procedural
history of the case, including factors such as the seriousness of the
reason leading to the child’s removal, the reason the problem was not
resolved, the passage of time since the child’s removal, the relative
strength of the bonds with the child, the nature of the change of
circumstance, and the reason the change was not made sooner. (See
Samuel A., supra, 55 Cal.App.5th at p. 7; In re Mickel O. (2011) 197
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Cal.App.4th 586, 616; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446–
447.)
Here, there is no material dispute that MaryJane and her siblings
were under dependency jurisdiction due to issues with mother’s erratic
behavior and mental health, her abuse of marijuana, and her inability
to provide MaryJane stable housing. Mother asserts that her
psychiatric evaluation constituted evidence that she did not have a
substance abuse problem or psychotic disorder, and that she had
secured stable housing for MaryJane. In mother’s view, this evidence
constitutes a change of circumstances.
We are not persuaded. Mother’s psychiatric evaluation actually
confirms one ground on which the court exercised dependency
jurisdiction. The evaluation confirms that mother’s PTSD causes
anxiety and vigilance, negative cognitions about the intentions of
others, and avoidance of situations or people that reminded her of prior
trauma. Despite mother’s intermittent therapy (first through
individual therapy ending around August 2018, and then through
pretrial services in August 2020), she continued to exhibit unstable
behavior, culminating in her 2019 arrest for trafficking a large quantity
of heroin. Such conduct could very well have jeopardized MaryJane’s
safety had the child been placed in her care. (See Kimberly R. v.
Superior Court (2002) 96 Cal.App.4th 1067, 1079 [“[t]he question is
whether the parent’s mental illness and resulting behavior adversely
affect[s] the child or jeopardize[s] the child’s safety”].)
Nor can we discern a change in circumstances with regard to
mother’s ability to provide stable housing for MaryJane. Throughout
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dependency, mother had either moved MaryJane from home to home, or
had given up custody of the child because she was unable to provide
adequate housing. Despite her concession that she could soon be
incarcerated, mother suggested placing MaryJane in her care while
living with maternal relatives, who mother asserts could care for the
child during her incarceration. But mother’s history with her relatives
has been far from stable. Mother had previously stated that she would
“never put trust” in her relatives to care for her children, and she
accused her family of calling her crazy. Viewed in context, mother’s
suggested placements are anything but secure. (See Samuel A., supra,
55 Cal.App.5th at p. 7.)
Even assuming mother had established a prima facie case of
changed circumstances, mother has not demonstrated how undoing the
prior order would be in MaryJane’s best interests. Once the juvenile
court terminates reunification services, the focus shifts from family
reunification to protecting the child’s need for permanence and stability.
(See In re J.H. (2007) 158 Cal.App.4th 174, 182–183; see Stephanie M.,
supra, 7 Cal.4th at p. 317 [the child’s need for continuity and stability
“‘will often dictate the conclusion that maintenance of the current
arrangement would be in the best interests of that child’”].) Mother’s
petition asked the court to reinstate reunification services and/or return
MaryJane to her care. The petition asserted only that mother could
provide a safe and loving home for MaryJane; nothing mother said in
her petition or attachments establishes a parental bond with the child.
Mother had maintained little contact with MaryJane between August
2018 and February 2019, and had no contact (outside of one in-person
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visit) between August 2019 and August 2020. MaryJane’s sadness
about mother not visiting subsided with time, and the child no longer
inquired about her whereabouts.
On the other hand, MaryJane was bonded with her siblings and
Maria, with whom the child had been living for three years. MaryJane
was “delighted” to be in that living arrangement, and she looked
forward to growing up with Maria and her siblings. “[T]he strength of a
child’s bond to his or her present caretakers, and the length of time a
child has been in the dependency system in relationship to the parental
bond are also vital. [Citation.] . . . [O]ur Supreme Court made it very
clear . . . that the disruption of an existing psychological bond between
dependent children and their caretakers is an extremely important
factor bearing on any section 388 motion.” (In re Kimberly F. (1997) 56
Cal.App.4th 519, 531; see also In re Hector A. (2005) 125 Cal.App.4th
783, 794 [sibling relationships are vitally important and should be
preserved “whenever possible”].) Mother fails to demonstrate how
disrupting MaryJane’s relationships with her prospective adoptive
parent and her siblings would be in MaryJane’s best interest. (See In re
C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [“there was no showing
whatsoever of how the best interests of these young children would be
served by depriving them of a permanent, stable home in exchange for
an uncertain future”]; In re Anthony W. (2001) 87 Cal.App.4th 246, 251–
252 [same].) Therefore, we conclude that the juvenile court did not
abuse its discretion by summarily denying mother’s section 388 petition
without an evidentiary hearing. Because mother makes no separate
argument with respect to the section 366.26 hearing, we also conclude
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that the court did not err in terminating mother’s parental rights over
MaryJane.
DISPOSITION
The orders denying mother’s section 388 petition and terminating
her parental rights over MaryJane are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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