In re F.P. CA2/8 ( 2014 )

Filed 6/24/14 In re F.P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re F.P. et al., Persons Coming Under the B253142
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK74133)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
TIFFANY B.,
Defendant and Appellant.
APPEAL from orders of the Los Angeles County Superior Court.
Donna Levin, Juvenile Court Referee. Affirmed.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, County Counsel, James M. Owens, Assistant
County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and
Respondent.
______________________________
Tiffany B. (hereafter Mother) appeals two orders of the juvenile dependency court
denying two petitions filed pursuant to Welfare and Institutions Code section 388 without
a hearing.1 We affirm the juvenile court’s orders.
STATEMENT OF FACTS
We examined the facts and procedural history of the current juvenile dependency
proceeding in two prior unpublished opinions. (See In re F.P. (May 14, 2012, B235638)
[nonpub. opn.]; and see In re F.P. (Apr. 30, 2014, B250054) [nonpub. opn.].)2 We need
not revisit those facts and history in full here. Instead, we briefly summarize the facts
and history of the case to establish the context for Mother’s section 388 petitions which
we address in this opinion.
In 2008, the Los Angeles County Department of Children and Family Services
(DCFS) detained Mother’s four children. Only two children, F.P. (born in June 2004)
and Fr. P. (born in Feb. 2006) are the subject of Mother’s section 388 petitions which are
at issue in the current appeal.3 The juvenile court sustained a petition alleging the
children were at risk of harm within the meaning of section 300, subdivisions (b), (g), and
(j), due to Mother’s mental and emotional problems and failure to take prescribed
medications.
In April 2010, the juvenile court terminated Mother’s reunification services, and,
in October 2010, the court appointed the children’s paternal grandparents as their legal
guardians. The children’s father, Frankie P., who was incarcerated and serving a prison
term of 40 years to life, died in December 2010.
Shortly after the juvenile court entered its orders appointing the paternal
grandparents as the children’s legal guardians, Mother began to file regular section 388
petitions seeking changes of the court’s existing orders, including the legal guardianship.
1 All further statutory references are to the Welfare and Institutions Code.
2 Mother has filed more than one-half dozen appeals from various orders in the
dependency proceedings since its inception.
3 We hereafter refer to F.P. and Fr. P. collectively as the children.
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In May 2012, we affirmed an order denying a petition filed by Mother in July 2011.
(See In re F.P., supra, B235638.)
In a December 2011 status review report, DCFS advised the juvenile court that the
paternal grandparents and the children were living in a two bedroom apartment, and that
the children were progressing and maturing age appropriately, and were very attached to
the paternal grandparents. (In re F.P., supra, B250054.) At the conclusion of a
December 2011 hearing, the juvenile court ordered the children be released to the
paternal grandparents, and terminated jurisdiction. The court also ordered: “As long as
Mother is appropriate, Mother may have reasonable monitored visits with the children at
least 1 time per month, 1 hour per visit, monitored by a monitor approved by legal
guardian.”
After the December 2011 orders, Mother continued to file regular section 388
petitions. Mother filed two separate section 388 petitions in May 2012, December 2012
and two more in March 2013, and April 2013. The juvenile court denied all of the
petitions. Earlier this year, we affirmed the order denying the petition filed by Mother in
April 2014. (See In re F.P., supra, B250054.)
On October 29, 2013, Mother filed another section 388 petition. In this petition,
mother alleged a change of circumstances as follows:
“My youngest daughter private part is infected with blisters. It appear to
me as if she’s been molested or [has] a bad yeast infection. I saw white thick
fluids from her private part. I saw my daughter being hit in the head by Ema P[.]
When my kids are sick I buy them medicine. My mom and sister are witnesses to
this, the neglect of my kids. DCFS failed the first time. I continue to provide for
my kids.”
Regarding the new orders that she wanted the juvenile court to make,
Mother wrote:
“I would want for the court to order DCFS to take my kids for a medical exam.
An order to interview [juvenile court referee] Jacqueline Lewis. A order to terminate
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guardianship and have my kids remove. A order to reopen my family reunification with
the return of getting my kids back into my care.”
Mother attached several documents to her section 388 petition including a receipt
from a 99¢ Only store, a PTA card dated 2010-2011, a receipt from a Panda Express
restaurant and several additional receipts from a Chuck E. Cheese’s restaurant and other
venues, purporting to show she had paid for her children’s birthday parties.
At a hearing on November 1, 2013, the juvenile court ruled that Mother had not
shown that reopening family reunification services as she had requested was in the best
interests of the children. The court summarily denied mother’s section 388 petition, but
noted further: “[I]ncluded in this 388 are some allegations that do need to be addressed
regarding one of the children was stricken by the current caregiver.” The court ordered
DCFS to initiate a child abuse referral. Mother filed an appeal.
On December 12, 2013, Mother filed another section 388 petition. This petition,
too, alleged that her daughter’s private parts showed “blistering and infection.” Mother
alleged that she had notified DCFS and called the Long Beach Police Department, who
then spoke with the children. Mother alleged that it was wrong of the police not to have
taken Fr. P. to the hospital. Mother also alleged that, since she started to complain about
the paternal grandparents, they had not allowed her to visit the children. Mother alleged
she last saw the children on or about October 25, 2013. With regard to a change in the
court’s existing orders, Mother requested that the juvenile court terminate the
guardianship and reopen family reunification services for her so that she could resume
“legal and physical custody” over the children.
On December 13, 2013, the juvenile court summarily denied Mother’s section 388
petition. Mother filed an appeal.
We consolidated Mother’s two appeals and address them together in this opinion.
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DISCUSSION
The juvenile court’s decision to deny a section 388 petition is reviewed under the
abuse of discretion standard. (See In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
The abuse of discretion standard applies when the court denies a section 388 petition with
or without a hearing (see In re Anthony W. (2001) 87 Cal.App.4th 246, 250), although we
are cognizant that a different contextual framework is presented in the hearing versus no
hearing situations. A section 388 petitioner is entitled to a hearing when his or her
petition makes a prima facie showing that (1) new evidence or a change in circumstances
has come to light; and (2) a proposed change in the juvenile court’s existing orders would
be in a child’s best interests. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
A section 388 petition should be liberally construed for such a prima facie showing.
(Ibid.) A hearing may be denied when a petition fails to reveal any change of
circumstance or new evidence which would support a change of existing orders. (In re
Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.)
A. Changed Circumstances
A parent is entitled to a hearing on a section 388 petition when the petition alleges
a change in circumstance that justifies changing the juvenile court’s prior orders. (In re
Edward H. (1996) 43 Cal.App.4th 584, 592.) However, more than “general, conclusory
allegations” is required to compel a hearing. (Ibid.) The petition must allege facts which
would sustain a favorable decision if the evidence submitted in support of the allegations
were credited. (Id. at p. 593.) We agree with Mother that she satisfied this element of the
section 388 procedure. Mother’s petitions alleged facts that showed a change in
circumstances, namely, physical signs consistent with poor care, at least, and possibly
with abuse. Mother’s petition also alleged “hitting” of a child. The juvenile court
acknowledged that there were allegations in Mother’s October 2013 petition to justify an
investigation by way of the referral process. DCFS’s arguments on appeal that Mother’s
allegations were not true or were too unbelievable applies too high a bar as the test of
whether a hearing on a section 388 petition is warranted. A hearing determines whether a
petition’s allegations are truthful.
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B. Best Interests of the Children
The juvenile court did not abuse its discretion in denying Mother’s petitions
without a hearing because Mother failed to establish a prima facie showing that granting
the changes in the orders that she requested would be in the children’s best interests.
Factors relevant to whether the change would be in the child’s best interest include “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.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
Mother’s petitions alleged no facts about any changes in her circumstances to
support giving her custody or reopening reunification services. Because Mother sought
orders to the end of placing the children in her care, she was required to make a prima
facie showing that her circumstances had changed such that she could be considered an
appropriate placement for the children. (In re Brittany K., supra, 127 Cal.App.4th at p.
1506 [affirming the refusal of a hearing when “[v]irtually the entire focus of appellant’s
section 388 petition . . . was on the alleged unsuitability of the minors’ foster
placement . . . .”].) In short, Mother alleged no new facts to support findings that she is
able to provide for the children. Mother’s petitions alleged no information on the
“mental and emotional problems” that were sustained at the outset of the dependency
proceedings.
The record demonstrates that the juvenile court ordered DCFS to investigate
Mother’s allegations concerning the paternal grandparents. On the record before us, we
find no more was required. Mother’s petitions failed to make a prima facie showing that
the proposed changes that she requested would be in the best interests of the children.
For this reason, the juvenile court did not abuse its discretion in denying mother’s section
388 petitions without a hearing.
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DISPOSITION
The juvenile court’s orders are affirmed.
BIGELOW, P.J.
We concur:
FLIER, J.
GRIMES, J.
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