Filed 7/28/21 In re D.A. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.A., a Person Coming B308252
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK15837A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Affirmed.
Lisa A. Raneri, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Olivia Raquel Ramirez, Senior
Deputy County Counsel, for Plaintiff and Respondent.
___________________________
Mother K.S. appeals the juvenile court’s order denying her
July Welfare and Institutions Code section 388 petition and
September “amended” petition, without a hearing. The petitions
requested reinstatement of reunification services, and visitation
with her son, D.A. She contends the failure to hold a hearing
violated her due process rights. We affirm, finding mother’s
amended section 388 petition made an insufficient prima facie
showing that circumstances had changed, or that visitation with
mother would be in D.A.’s best interest, and any due process
violation was necessarily harmless.
BACKGROUND
This family came to the attention of the Los Angeles
County Department of Children and Family Services
(Department) in February 2016 after a domestic violence incident
between mother and her ex-boyfriend in the presence of then
three-year-old D.A.
Mother has a history of referrals to the Department, for
medical neglect of D.A. and for committing an assault with a
hammer in D.A.’s presence. Both referrals were closed as
inconclusive after the Department was unable to locate mother.
The Department received another referral while this case was
pending, that mother had violently attacked maternal
grandfather.
Mother has an extensive criminal history, including
numerous arrests, probation violations, and prison terms for
theft-related offenses.
Mother initially concealed D.A.’s whereabouts from the
Department and was not forthcoming about the referral incident.
Over the course of the dependency, mother was often hostile and
aggressive with the Department, lied to or misled the
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Department, and continued to commit crimes. During an
unmonitored visit with D.A., mother was arrested for shoplifting.
The experience was so terrifying that D.A. refused to visit mother
after that, and her visitation was suspended.
Mother completed anger management classes, and
participated in individual counseling, but her conduct and
attitude did not improve. Eventually, her reunification services
were terminated. In August 2018, D.A. was placed in a legal
guardianship with maternal grandmother, with whom he was
thriving, and jurisdiction was terminated.
On July 13, 2020, mother filed a Welfare and Institutions
Code section 388 petition, without the assistance of counsel,
asking the court to terminate the guardianship and return D.A.
to her care, or to reinstate family reunification services. Mother
asserted she had made extensive progress and was able to
provide a safe and stable environment for D.A. In support of the
petition, mother included a rental agreement showing she had
rented an apartment in March 2018 and a letter from her
therapist confirming mother attended weekly therapy sessions
“to overcome her trauma” and that she was putting “immense
effort into her therapy.” The letter did not state how long mother
had been participating in therapy, or whether she was achieving
her treatment goals. Mother had also completed 15 hours of
anger management and parenting classes by May 2020. The
notice of completion did not discuss the quality of mother’s
participation in the programs.
On July 21, 2020, the court ordered “a hearing on whether
the court should grant or deny an evidentiary hearing” and
ordered the Department to prepare a report addressing the
petition. The court continued the initial hearing date to
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September 10 and ordered the Department to give notice to “all
appropriate parties.”
At the September 10, 2020 hearing, county counsel and
attorney Ms. Kim were present via WebEx. The record does not
state mother was present at the hearing. The court asked if
Ms. Kim was willing to accept appointment for mother, and she
replied “I can stay a friend today.” The court continued the
hearing to September 25, 2020, and ordered Ms. Kim to give
notice to mother.
The Department’s section 388 report recommended the
petition be denied, because mother continued to deny shoplifting
while she was visiting with D.A. Mother’s rap sheet disclosed
further criminal activity, including a 2019 conviction for
providing false identification to peace officers and a 2019 arrest
for battery.
Two days before the hearing, on September 23, 2020,
mother filed an “amended” section 388 petition, again without the
assistance of counsel. This petition was identical to the July
petition, except it also asked the court to order monitored or
unmonitored visitation for mother, and it included an updated
letter from mother’s therapist. The letter noted that mother had
been “using mental health services” since February 2020, but did
not explain the frequency of her sessions, the treatment goals,
and whether mother was achieving them. The therapist simply
stated that mother “shows great willingness to work on
improving herself . . . .”
On September 25, 2020, the court denied the September 23
petition “without hearing,” finding mother had not made the
required prima facie showing.
Mother timely appealed the September 25, 2020 order.
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DISCUSSION
1. Section 388 Petition
“Section 388 permits ‘[a]ny parent or other person having
an interest in a child who is a dependent child of the juvenile
court’ to petition ‘for a hearing to change, modify, or set aside any
order of court previously made or to terminate the jurisdiction of
the court’ on grounds of ‘change of circumstance or new evidence.’
(§ 388, subd. (a).)” (In re Lesly G. (2008) 162 Cal.App.4th 904,
912.) A parent must “establish[] by a preponderance of the
evidence that (1) new or changed circumstances exist, and (2) the
proposed change would promote the best interest of the child.
[Citation.] The parent bears the burden to show both a
‘ “legitimate change of circumstances” ’ and that undoing the
prior order would be in the best interest of the child. [Citation.]”
(In re S.J. (2008) 167 Cal.App.4th 953, 959.) Changing
circumstances are insufficient. (See, e.g., In re Mary G. (2007)
151 Cal.App.4th 184, 206.)
Section 388 petitions are liberally construed in favor of
granting a hearing to consider the parent’s request. A parent
need only make a prima facie showing to establish the right to a
hearing on the petition. A prima facie showing is made when a
parent demonstrates facts which will support a favorable decision
if credited by the court. “ ‘Whether [the petitioner] made a prima
facie showing entitling [the petitioner] to a hearing depends on
the facts alleged in [the] petition, as well as the facts established
as without dispute by the [dependency] court’s own file . . . .’
[Citation.]” (In re B.C. (2011) 192 Cal.App.4th 129, 141.)
“ ‘[I]f the liberally construed allegations of the petition do
not make a prima facie showing of changed circumstances and
that the proposed change would promote the best interests of the
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child, the court need not order a hearing on the petition.
[Citations.] . . .’ [Citation.] [¶] The appellate court ‘ “will not
disturb [a] decision unless the trial court has exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently
absurd determination [citations].” ’ [Citation.]” (In re Mary G.,
supra, 151 Cal.App.4th at p. 205.)
Mother contends the juvenile court abused its discretion
when it denied her amended section 388 petition without a
hearing. She argues she made the requisite prima facie showing
of changed circumstances, and monitored visitation was in D.A.’s
best interest. We are not persuaded. The juvenile court’s
summary denial is fully supported by the record.
Although mother had engaged in further services, she
made no showing that she had benefited from them. Mother had
participated in therapy and anger management in the past, but
had not benefited from them, continuing in her criminal
behavior, angry outbursts, and lack of transparency with the
Department. The situation was much the same as it was when
mother’s visitation was suspended and her reunification services
were terminated. More significantly, there was absolutely no
showing that D.A. would benefit from visitation with mother.
Therefore, we find no abuse of discretion.
2. Due Process
Mother alternatively argues that the court violated her
right to due process by ordering a hearing to consider whether a
full evidentiary hearing was required for the July 2020
section 388 petition, and then not holding that hearing.
California Rules of Court, rule 5.570(d)(1) provides that a
section 388 petition that does not state a change in circumstances
or “fails to show that the requested modification would promote
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the best interest of the child” may be denied ex parte. If the
petition is not denied ex parte, the court must either: “(1) order
that a hearing on the petition be held within 30 calendar days
after the petition is filed; or [¶] (2) order a hearing for the
parties to argue whether an evidentiary hearing on the petition
should be granted or denied.” (Rule 5.570(f).)
The court was not required to hold a hearing on the July
petition because it was superseded by the September petition
which included the same evidence as the July petition plus
additional, updated evidence. As we have discussed ante, the
court was well within its discretion to deny the September
petition ex parte, as mother had not made a sufficient prima facie
showing. We can discern no possible prejudice, when neither
petition stated sufficient facts supporting a full evidentiary
hearing. (See, e.g., In re J.F. (2011) 196 Cal.App.4th 321, 336
[assessing prejudice in the context of due process].)
DISPOSITION
The September 25, 2020 order is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J. OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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