In re V.L. CA2/4 ( 2020 )

Filed 8/18/20 In re V.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re V.L. et al., B295993
(Los Angeles County
Persons Coming Under the Juvenile Super. Ct. No. DK23383)
Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSICA L. et al.,
Defendants.
E.L. et al.,
Appellants.
APPEAL from an order of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
The Haynes Law Firm and Crista Hayes for Appellants.
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant
County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff
and Respondent.
Maternal grandparents E.L. and M.L. appeal from the juvenile
court’s summary denial of their Welfare and Institutions Code1 section
388 petition requesting custody and placement of their grandchildren,
V.L. (born January 2008), M.L. (born September 2012), and K.C. (born
March 2016). Though we sympathize with maternal grandparents’
desire to have an active role in raising the children, we cannot say that
the juvenile court abused its discretion in denying the section 388
petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the facts and procedural background based on the
allegations set forth in maternal grandparents’ section 388 petition.2
Beginning in January 2008, Jessica L. (mother) and the children
lived in maternal grandparents’ home. In October 2016, maternal
grandparents expressed concern over mother’s drug use and mental
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 The record in this case is quite limited. It consists of the operative
section 388 petition for all three children, minute orders summarily denying
the petition, a request for disclosure of the juvenile case file, and maternal
grandparents’ notice of appeal.
2
health, leading mother to leave with the children. Between October
2016 and February 2017, the children lived with mother in maternal
great-grandmother’s home, after which mother and the children left and
could not be found.
The children came to the attention of the Los Angeles Department
of Children and Family Services (DCFS) around July 2017, when
maternal grandparents filed missing persons reports for mother and the
children. After reviewing the reports, the juvenile court issued a bench
warrant, and mother was arrested. Following her arrest, DCFS
removed the children from her and Kelvin C.’s (father’s) care, filed a
section 300 petition based on allegations of “Physical Harm, Failure to
Protect, and Abuse of a Sibling,” and placed the children in the care of
paternal grandmother, Maria C. At a hearing on August 23, 2017, the
juvenile court removed the children from parents’ custody and placed
them in the custody of Maria C.
The children’s placement with Maria C. notwithstanding,
maternal grandparents sought placement of the children and submitted
a Resource Family Approval (RFA) application.3 Maternal
grandparents understood there could be issues placing the children in
their care, as mother had alleged that maternal grandfather sexually
abused one of the children and molested mother when she was a minor.
3 The RFA process is “a unified, family friendly, and child-centered
resource family approval process to replace the existing multiple processes for
licensing foster family homes, . . . approving relatives and nonrelative
extended family members as foster care providers, and approving guardians
and adoptive families.” (§ 16519.5, subd. (a).)
3
Maternal grandfather denied the allegations and asserted that mother
had recanted in an October 2016 letter wherein she stated, “I guess
some memories weren’t true.”4 Maternal grandfather also alleged that
mother had threatened to make false accusations if he or anyone else
attempted to take the children from her. In his view, “[i]t was clear to
[the social worker] that [mother’s] allegations were false and not
supported by any iota of evidence.”
During a November 22, 2017 visit with the children, maternal
grandparents noticed that V.L. had sustained injuries to her face and
hands. One week later, maternal grandparents filed a section 388
petition seeking regular and frequent visits with the children. The
court granted the petition and ordered monitored visitation with the
children twice per month.
According to maternal grandfather, he and his wife were verbally
advised in February 2018 that their RFA application had been denied
“because of the unresolved and unsubstantiated allegations of abuse by
mother against me.[5] To present date, we have never received a Notice
4 Maternal grandparents attached numerous exhibits in support of their
section 388 petition. One of the exhibits—mother’s October 2016 letter—is
blacked out and illegible. We recite the quotation from the letter as alleged
in the section 388 petition.
5 An RFA application will be approved if the family has successfully met
the home environment assessment standards and the permanency
assessment criteria set forth under the RFA statutes. (§ 16519.5, subd.
(c)(1).) A family home environment assessment includes a criminal record
clearance for each applicant and all “denizens” (meaning all adults residing
in or regularly present in the home), consideration of any substantiated child
abuse allegation against the applicant and any denizens, and a home and
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of Action for this verbal denial, and therefore we cannot yet appeal the
decision.”
At an adjudication hearing on August 10, 2018, the court
sustained an amended section 300 petition against the parents,6
ordered the children removed from their custody, and placed the
children under the supervision of DCFS. The court ordered that mother
receive monitored visitation, reunification and counseling services, and
a psychiatric evaluation. In light of father’s recent incarceration, the
court did not order reunification services for him.7 The court set a six-
month review hearing for February 2019.
At a monitored visit with the children on November 30, 2018, the
grandparents noticed that V.L. had sustained an injury to her nose.
The child told maternal grandparents that she had sustained the injury
one week prior, that she had not seen a doctor for an examination, and
grounds evaluation. (§ 16519.5, subd. (d)(2).) A permanency assessment
includes a psychosocial assessment of an applicant and the results of a risk
assessment, which includes, but is not limited to, the applicant’s physical and
mental health, alcohol and other substance abuse, family and domestic
violence, and the applicant’s understanding of children’s needs and
development. (§ 16519.5, subd. (d)(3).)
6 The court sustained two section 300, subdivision (b) counts against
mother, and four subdivision (b) and (j) counts against father.
7 According to maternal grandparents, in denying reunification services
to father, the court relied on section 361.5, subdivision (e)(1). That provision
states, inter alia, that “[i]f the parent or guardian is incarcerated,
institutionalized, or detained . . . , the court shall order reasonable services
unless the court determines, by clear and convincing evidence, those services
would be detrimental to the child.”
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that she and the other children were not getting care from a doctor.
Maternal grandparents informed the visiting monitor and called the
Child Abuse Hotline to report the injury. During other unspecified
visits, maternal grandparents observed the children with untreated
cold-like symptoms. Maternal grandparents also suspected Maria C. of
permitting unscreened adults to live in her home with the children.
On January 11, 2019, maternal grandparents filed the operative
section 388 petition in which they sought an order placing the children
in their care. In light of the facts alleged, maternal grandparents
asserted the current placement placed the children at risk of harm and
neglect because Maria had “disregarded the [children’s] safety and
medical needs.”
On January 23, 2019, the court denied maternal grandparents’
petition without holding a hearing. The court found that the petition
did not state new evidence or establish a change of circumstances, and
that the proposed change would not be in the best interests of the
children.
Maternal grandparents filed a timely notice of appeal.
DISCUSSION
Maternal grandparents contend the juvenile court abused its
discretion by summarily denying their section 388 petition. In their
view, the court was required to order an evidentiary hearing because
they established changed circumstances and grounds showing that the
best interests of the children would be served by returning them to
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maternal grandparents’ care. We conclude that the juvenile court did
not abuse its discretion by summarily denying the petition.
1. Governing Law
Section 388 allows a parent or other interested person to petition
the court to change, modify or set aside any previous order in the case
based on grounds of “change of circumstance or new evidence.” (§ 388,
subd. (a)(1).) “If it appears that the best interests of the child[ren] . . .
may be promoted by the proposed change of order,” the court shall order
that a hearing be held on the petition. (§ 388, subd. (d).)
On receipt of a section 388 petition, the juvenile court may either
summarily deny the petition, or order a hearing if the petitioners make
a prima facie showing in their favor. (In re Lesly G. (2008) 162
Cal.App.4th 904, 912.) “‘There are two parts to the prima facie
showing: The [petitioners] must demonstrate (1) a genuine change of
circumstances or new evidence, and . . . (2) [that] revoking the previous
order would be in the best interests of the children.’” (In re C.J.W.
(2007) 157 Cal.App.4th 1075, 1079; see also In re Kimberly F. (1997) 56
Cal.App.4th 519, 529; Cal. Rules of Court, rules 5.570(d)(1) &
5.570(d)(2).)8
The juvenile court’s summary denial of a section 388 petition will
not be disturbed unless the juvenile court abused its discretion by
making a decision that exceeded the bounds of reason. (In re A.R.
(2015) 235 Cal.App.4th 1102, 1116–1117; see also In re Daniel C. (2006)
8 Subsequent references to rules are to the California Rules of Court.
7
141 Cal.App.4th 1438, 1445 [“‘The denial of a section 388 motion rarely
merits reversal as an abuse of discretion’”].) “‘“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.” [Citation.]’ [Citations.]” (In re A.R., supra, at p. 1117.)
2. Analysis
Under the applicable standard of review, we cannot say the
juvenile court abused its discretion by summarily denying maternal
grandparents’ section 388 petition.
The allegations in the petition did not establish new evidence or
changed circumstances warranting modification of the children’s
placement. Among other things, the record is silent on whether V.L. or
her siblings received medical treatment between V.L.’s first reported
injury in 2017 and her second injury in 2018, and whether they received
medical treatment after maternal grandparents’ reports to a social
worker and the Child Abuse Hotline. In addition to these issues, the
suspicion that Maria C. allowed unscreened individuals to live in her
home can be (and may have been) addressed and alleviated by
continued oversight by DCFS and the court. Thus, we cannot say that
the allegations rise to such a “‘significant nature that it requires setting
aside or modification of the challenged prior order.’ [Citation.]” (In re
Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).)
Even assuming the allegations constitute changed circumstances,
the petition has not established how the proposed modification would
promote the children’s best interests. (See In re Kimberly F., supra, 56
8
Cal.App.4th at p. 529.) Certainly, maternal grandparents have played
a vital role in the children’s lives. But the love and stability they
provide is not determinative of the children’s best interests. According
to the petition itself, through the RFA process, maternal grandparents
were found to be unsuitable caregivers due to mother’s allegations that
maternal grandfather had sexually abused her and one of the children.
Those allegations have perpetuated animosity and conflict between
mother and maternal grandparents. By placing the children back into
maternal grandparents’ home amidst ongoing conflict with mother, the
court could reasonably determine that the requested placement would
infringe on mother’s fundamental interest in the children’s
companionship and could interfere with her efforts at reunification. (In
re H.G. (2006) 146 Cal.App.4th 1, 9–10; see § 361.3, subd. (d) [whenever
new placement is made, consideration shall be given to relatives who
have not been found to be unsuitable and who will fulfill the
reunification plan].) Moreover, the children have been placed with
Maria C. for a significant period of time such that their need for
continuity and stability assumes an increasingly important role. (See
In re Brittany K. (2005) 127 Cal.App.4th 1497, 1506; Mickel O., supra,
197 Cal.App.4th at p. 616 [in assessing best interests of the children, “‘a
primary consideration’” is assuring stability and continuity].) Thus, the
court did not abuse its discretion by finding the children’s best interests
would not be served by the requested modification.
Maternal grandparents’ reliance on Mickel O. does not compel a
different result. The children in Mickel O. were subject to an ongoing
custody dispute between their paternal and maternal grandparents.
9
(Mickel O., supra, 197 Cal.App.4th at pp. 589, 597.) Though the
children had previously lived with maternal grandparents prior to the
dependency, the court ultimately placed them with paternal
grandparents, where the children had resided for approximately three
years. (Id. at pp. 589, 611.) Maternal grandparents then filed a section
388 petition requesting placement of the children, or in the alternative,
unsupervised visitation. (Id. at pp. 588, 603.) The court set the petition
for a hearing alongside a hearing on the termination of parental rights.
(Id. at pp. 597, 603.)
At the combined 388 and 366.26 hearing, an expert submitted a
report and testified about a bonding study she had completed on both
sets of grandparents. (Mickel O., supra, 197 Cal.App.4th at pp. 590–
597, 603.) The expert reported that despite maternal grandfather’s
strong and loving relationship with one of the children, the children
should not be moved from paternal grandparents’ home because it had
consistently provided the children a sense of stability and security. (Id.
at pp. 592, 600, 616.) Following the hearing, the court denied the
section 388 petition, terminated parental rights, and terminated
maternal grandparents’ visitation with the children. (Id. at pp. 610,
612–613.)
The maternal grandparents appealed from the denial of their
petition and the summary termination of visitation. (Mickel O., supra,
197 Cal.App.4th at pp. 614, 617–618.) As to the denial of the petition,
the appellate court found no abuse of discretion, because the children’s
best interests would be served by the continued stability and security in
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the paternal grandparents’ home. (Id. at pp. 589, 611, 616.) As to the
termination of visitation, the appellate determined that the lower court
abused its discretion, because the issue had never been raised during
the hearing, permanent placement of the children was not a foregone
conclusion, and termination of visitation “foreordained the outcome”
that paternal grandparents (with whom maternal grandparents were
fighting) could ignore any future request to visit with the children. (Id.
at p. 619.)
Termination of visitation is not in issue in the present case. To
the contrary, maternal grandparents have consistently visited with the
children in accordance with the juvenile court’s order. The issue in
Mickel O. that is relevant here (i.e. the denial of a section 388 petition)
actually supports our conclusion. As in Mickel O., the children here had
been placed with a paternal grandparent for over three years prior to
the filing of maternal grandparents’ section 388 petition. With such
significant time elapsed, the children’s stability and continuity are of
primary concern. (See Mickel O., supra, 197 Cal.App.4th at p. 616.)
Finally, maternal grandparents contend they were at least
entitled to an evidentiary hearing in accordance with rule 5.570(f),
which provides that “[i]f all parties stipulate to the requested
modification, the court may order modification without a hearing. If
there is no such stipulation and the petition has not been denied ex
parte under section (d), 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
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denied.” Under the plain meaning of the rule, the juvenile court need
not order a hearing if it summarily denies the petition “ex parte under
section (d).” That is precisely what the juvenile court did in this case.
(See Rule 5.570(d) [the court may deny the petition ex parte if “(1) The
petition filed under section 338(a) . . . fails to state a change of
circumstance or new evidence that may require a change of order or
termination . . . or fails to show that the requested modification would
promote the best interest of the child, nonminor, or nonminor
dependent”].) Thus, maternal grandparents were not entitled to an
evidentiary hearing.
DISPOSITION
The order summarily denying the section 388 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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