Filed 8/24/22 In re S.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.S., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078257
Plaintiff and Respondent, (Super.Ct.No. J282749)
v. OPINION
H.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for
Plaintiff and Respondent.
1 INTRODUCTION
Appellant H.S. (father) appeals from the juvenile court’s summary denial of his
Welfare and Institutions Code1 section 388 petition regarding his daughter, S.S. (the
child). We affirm.
PROCEDURAL BACKGROUND
Background from Case No. E0773092
“On October 9, 2019, the San Bernardino County Children and Family Services
(CFS) filed a section 300 petition on behalf of the child, alleging that she came within the
provisions of subdivisions (b) (failure to protect) and (j) (abuse of sibling). The child was
10 years old at the time. The petition specifically alleged that father and the child’s
mother, T.S. (mother), . . . failed to adequately protect the child from the conduct of the
child’s brother, L.J., . . . and that father and mother (the parents) had two previous
dependency cases through Los Angeles County regarding the child’s sibling, C.S. The
petition further alleged that mother had a history of substance abuse.
“The social worker filed a detention report and stated that on October 6, 2019,
CFS received a referral alleging caretaker absence, general neglect, and physical abuse.
It was reported that mother left the child at home with her adult brother, L.J. Mother told
1 All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
2 This procedural background is taken directly from this court’s opinion in In re S.S. (Feb. 10, 2022, E077309) [nonpub. opn.]. By order dated January 11, 2022, this court ordered the record in case No. E077309 incorporated in the instant case, case No. E078257. 2 the child to leave if she felt uncomfortable with him, but when the child attempted to
leave, he tried to drag her back into the house. The child grabbed a box cutter and cut
him. The police attempted to reach mother, but she did not answer her phone or call
back. The police called father, but he said he was unable to come to get the child because
he was in Los Angeles. [¶] . . . [¶]
“When mother finally came to the police station, she appeared fidgety, her eyes
were glossy, and she had difficulty following the conversation with the officer. Mother
said she knew her son smoked marijuana and that he might be using crystal
methamphetamine. She said she would leave the child with him if she had to go to the
store. Mother initially denied any physical altercations with L.J., but then described a
time when he tackled her. When the child attempted to intervene, he pushed the child.
Mother described another time when he tried to attack her (mother). When asked why
she continued to leave the child with L.J., she denied that the child ever told her she was
uncomfortable with him or afraid of him. Mother continuously said the child was fine
with L.J. [¶] . . . [¶]
“The court held a detention hearing on October 10, 2019, and detained the child.
[¶] The social worker filed a jurisdiction/disposition report on or around November 1,
2019, recommending that the child be removed from the parents’ care and that both
parents be offered reunification services. The social worker reported that mother admitted
being a recreational user of cocaine, stating that she started using at the age of 18 and
used it on and off for months at a time since then. (She was 51 years old at the time of
the writing of the report.) Mother said she relapsed and resumed using cocaine over the
3 past two months. On October 24, 2019, father stated that he was aware of mother's past
drug history, but was not aware that she had used drugs recently. [¶]
“On October 24, 2019, the social worker interviewed father, who said he had not
been present in the home most of the time since he was seeking housing in Los Angeles
County. He added that he was a commercial truck driver and was only home three or
four days a month. However, he was no longer able to work as a truck driver, due to
health issues. Since he had no income and did not want to be a burden on his family, he
moved out and signed up for homeless services in Los Angeles County. Mother reported
that the idea was for father to obtain housing in Los Angeles County utilizing the
‘homeless voucher’ and then attempt to transfer the voucher to San Bernardino County
and add mother and the child to his case, so the family could benefit from Section 8
housing. The social worker stated that the problems requiring intervention were mother’s
substance abuse, father’s absence from the home and lack of involvement in parenting,
and mother’s poor parenting decisions. She further noted that mother and father’s lack of
ability to co-parent, due to father being out of the home the majority of the time, affected
the family’s ability to function.
“The social worker also reported on the parents’ child welfare history. On
September 21, 2003, Los Angeles County received a referral alleging caretaker absence
by mother. It was reported that mother was arrested for using crack cocaine, and the
allegations were substantiated. Between September 21, 2003, and December 10, 2004,
the parents had an open case in Los Angeles County regarding C.S. . . . The allegations
in that case included that mother had a substance abuse history, and she was arrested for
4 child endangerment, and that father knew of her substance abuse, but continued to leave
C.S. in her care, thereby failing to protect the child. The petition also alleged that father
physically abused C.S. The parents later reunified with C.S., after completing parenting
education classes, family counseling, and other requirements. Subsequently, between
February 17, 2005, and February 13, 2006, they had another open case with Los Angeles
County regarding C.S. . . . The petition alleged that the parents had a history of domestic
violence and had violently assaulted each other in C.S.’s presence, that father had
physically abused C.S., and that mother had a substance abuse history. The parents
eventually reunified with C.S., after successfully completing the court-ordered programs.
“The court held a jurisdiction/disposition hearing on November 1, 2019, and
sustained the petition, declared the child a dependent, removed her from the parents’
custody, and ordered the parents to participate in reunification services. Father’s case
plan required him to complete a parenting education program. . . .
“The social worker filed a six-month status review report on May 29, 2020,
recommending that the parents continue to be provided with reunification services. . . .
[¶] . . . [¶] The social worker spoke with the parents, and father reported that he
completed his parenting classes. Mother said she completed her parenting classes,
therapy, and outpatient treatment. Nonetheless, the social worker opined that it would be
detrimental to return the child to either parent since they had not had unsupervised visits
with her. Furthermore, the parents lived in separate homes most of the time, and their
homes needed to be assessed before the child could be returned. The social worker stated
5 that the parents also needed to complete individual therapy and show they had benefited
from it.
“The social worker filed an addendum report on June 1, 2020, and attached a copy
of a police report documenting a domestic violence incident between father and mother
on April 20, 2020. Police responded to a call at mother’s residence. The officer
observed that mother had blood running down her face, coming from the corner of her
eye. Mother reported that she and father had a verbal argument that escalated, and she
went to the bedroom and shut the door. Father was still angry at her and began pounding
on the bedroom door and threatening her. Mother became fearful, so she left the
bedroom, pushed past him, and went to the kitchen to grab a hammer. When father saw
her with the hammer, he took it from her and struck her in the face with his fist, causing
her to fall onto the floor. Father continued to hold the hammer as he stood over the
victim. He eventually put it down, and the victim had L.J. call the police. Father was
arrested. . . . Subsequently, the social worker had separate telephone conversations with
father and mother. Mother said they had an argument, and that father was arrested, but
she denied any domestic violence and said she did not know who called the police. She
also denied having any physical injuries. Father denied they had a verbal argument and
said he told the police there was no arguing, fighting, or hitting, and he did not know why
someone would call the police. He said he was arrested that night and was released from
custody early the next morning.
6 “The court held a six-month review hearing on June 5, 2020, and continued the
parents’ reunification services. The case plan was updated to require that they participate
in a domestic violence program. [¶]
“The social worker filed a 12-month status review report on October 2, 2020,
recommending that reunification services be continued. The report indicated that the
child had issues with taking items that did not belong to her, refusing to take her
prescribed hypertension medication, not wanting to participate in therapeutic services
with her assigned therapist, and refusing to attend school regularly. When she was in
school, she accessed inappropriate websites while in class and had to have her
Chromebook taken away from her. The child was also having ‘sexual communication’
with an unidentified male through social media. The social worker reported that the child
was previously placed in a foster home on October 7, 2019. However, due to her
negative behaviors, she was removed from the home on October 1, 2020, and placed in a
group home since she needed a higher level of care. [¶] . . . [¶]
“The court held a 12-month status review hearing on October 16, 2020. It
continued the child as a dependent, continued reunification services, ordered
unsupervised visits once a week, and gave CFS the authority for the 29-day visit and to
place the child with the parents ‘by standing order.’ [¶]
“The social worker filed an 18-month status review report on March 26, 2021,
recommending that the court continue services for 90 days. [¶] . . . [¶] The social
worker opined that it would be detrimental to return the child to the parents and that the
case should be continued for 90 days since the parents had not benefited from their
7 domestic violence prevention classes or therapy, to the extent they should have. They
both continued to deny the domestic violence incident on April 19, 2020, in contrast to
the police report from that day. The social worker opined that they both needed to retake
a domestic violence prevention class and complete individual therapy. Furthermore, the
parents had not had overnight visits with the child, and she needed to assess the family
dynamics when overnight visits occurred. . . . The social worker recommended a
visitation plan with a series of overnight visits, so she could assess the parents’ progress.
“On June 18, 2021, the social worker sent an additional information memorandum
to the court, recommending that the court terminate father’s and mother’s reunification
services. Mother missed multiple drug tests and had two positive tests. Furthermore, on
May 24, 2021, a referral was called in to the child abuse hotline alleging that mother may
have been under the influence of a controlled substance during a recent visit with the
child, but the investigation was still open. [¶] The social worker reported that on June
10, 2021, she emailed the police department requesting any reports regarding the parents.
She had not received any police reports, so it was unknown if domestic violence was
occurring between the parents. However, since the parents were residing together and
their behaviors affected each other, the social worker believed the child would be at risk
of possible abuse and neglect if returned to their home. Thus, she recommended the
court find the parents had failed to participate regularly and make substantive progress in,
or complete, the court-ordered case plan, and find that custody by the parents continued
to be detrimental to the child and return to their custody would create a substantial risk of
detriment to her safety, protection, and well-being. The social worker further
8 recommended that the court order the parents’ reunification services to be terminated,
that the child be placed in a concurrent planning home, and the permanent plan of legal
guardianship be implemented.
“The court held a[n] [18-month review] hearing on June 25, 2021. [¶] . . . [¶]
. . . The court stated that it was finding by clear and convincing evidence that the parents
had failed to participate regularly and make substantive progress in or complete their
court-ordered case plans. It further stated that the child was continued as a dependent and
was in her group home, and it gave CFS authority to place her in a concurrent planning
home. The court terminated the services of both parents and ordered the ‘permanent plan
of placement in foster care with a permanent plan of legal guardianship.’ It then
continued the matter for a permanency planning review.” (In re S.S., supra, E077309.)
Procedural Background Following Case No. E077309
On December 8, 2021, the social worker filed a section 366.3 Post Permanent Plan
status review report (dated December 16, 2021). She reported that on October 7, 2021,
she had her monthly contact with the child, and the child said she saw her parents every
Sunday. The child reported that her parents were married but had two separate houses,
and sometimes they stayed together and sometimes they “sle[pt] apart.” The social
worker further reported that the parents’ visits were increased to three hours once a week,
but they were still supervised. The social worker continued to recommend the permanent
plan of placement in foster care with a permanent plan of legal guardianship; the child
completed her program at the group home and was ready to move forward with a lower
9 level of care in a foster home, with the hope that the caretaker would be willing to be the
child’s legal guardian.
Section 388 Petition
On December 14, 2021, father filed a section 388 petition requesting the court to
reinstate his reunification services. As to changed circumstances, he alleged that he
“completed the case plan services on his own.” As to best interests of the child, father
alleged, “It would allow the minor the opportunity to reunify with his [sic] father.” In
support of his petition, father attached a treatment summary from Victorville Counseling
indicating that he completed an assessment on August 18, 2021, and 15 counseling
sessions after that. Father also attached three certificates of completion from different
programs. (We note the quality of the copies attached to father’s petition are very poor
and difficult to read.) Father states on appeal that he attached certificates from Penn
Foster for “Managing High Stress” and from an Active Parenting class. CFS states one
certificate is from Penn Foster Corporate Learning for participating in the program
“Managing Through Stress,” one certificate dated December 19, 2019, is from a
parenting program, and the third certificate, dated September 29, 2021, is from a
domestic violence program with a focus on victim impact.
On December 14, 2021, the court denied father’s petition without a hearing, noting
that it did not state new evidence or a change of circumstances, and the proposed change
was not in the child’s best interests. The court stated, “At best, father has demonstrated
changing circumstances.”
10 On December 16, 2021, the court held a post permanent plan review hearing and
adopted the social worker’s recommended findings and orders, including that the court
continue the child as a dependent and order the permanent plan of placement in foster
care, with the goal of legal guardianship. That same day, father filed a notice of appeal to
challenge the court’s findings and orders made at the review hearing.
On February 11, 2022, father filed an amended notice of appeal to include the
order denying his section 388 petition on December 14, 2021, as well as the findings and
orders made on December 16, 2021.
DISCUSSION
The Court Properly Denied Father’s Section 388 Petition
Father argues that the court erred in summarily denying his section 388 petition.
He claims he should have been granted an evidentiary hearing since he made the requisite
prima facie showing that his circumstances had changed, and that offering him
reunification services would be in the child’s best interest. We conclude the court
properly denied father’s petition.
A. The Court Did Not Abuse its Discretion
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist and (2) the proposed change would promote the best
interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).)
“Thus, the parent must sufficiently allege both a change in circumstances or new
evidence and the promotion of the child’s best interests.” (In re G.B. (2014) 227
11 Cal.App.4th 1147, 1157 (G.B.).) “A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent’s
request. [Citation.] [¶] However, if 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 child, the court need not order a hearing on the
petition.” (Zachary G., at p. 806.) “The 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.” (Ibid.) “While the petition must be liberally
construed in favor of its sufficiency [citation], the allegations must nonetheless describe
specifically how the petition will advance the child’s best interests.” (G.B., at p. 1157.)
More than general conclusory allegations are required to make this showing, even when
the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593
(Edward H.).) “We review the juvenile court’s summary denial of a section 388 petition
for abuse of discretion.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)3
3 Father claims the standard of review is de novo, relying on In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy W.). However, in that case, the mother submitted evidence with her section 388 petition which established “a strong prima facie showing,” and the court summarily denied her petition by checking off boxes on a printed form without making any factual findings or explaining its conclusions. (Id. at pp. 1413, 1416.) In contrast, here, the trial court reviewed the supporting evidence and the general averments in father’s petition and concluded that he had demonstrated only “changing circumstances” and provided no evidence of best interests of the child. Thus, there was no due process violation. (See In re Jackson W.(2010) 184 Cal.App.4th 247, 260 [where a petition fails to make a prima facie showing, summary denial of the petition does not violate petitioner’s due process rights].) 12 Father’s section 388 petition sought the provision of more reunification services.
The juvenile court did not abuse its discretion in summarily denying the petition, as
father was unable to demonstrate that a changed order was in the best interest of the
child. As to changed circumstances, the petition merely alleged that father “completed
the case plan services on his own.” However, we note that at the 18-month hearing on
June 25, 2021, father stated that he completed his case plan. Moreover, at the time of the
18-month review, the social worker opined that father needed to retake a domestic
violence class and complete individual therapy since he had not benefited from his class
or therapy as much as he should have. She was concerned about his failure to
acknowledge that domestic violence occurred in his relationship with mother, even after
completing domestic violence prevention education classes. Although father apparently
completed a subsequent domestic violence program, as evidenced by the completion
certificate attached to his section 388 petition, there was no evidence or indication he had
benefitted from it. Similarly, although he attached proof that he was participating in
counseling, there was no indication of how he had benefitted from it. This is particularly
concerning since father had previously completed several domestic violence programs
and had participated in therapy, with little to no benefit. Thus, the court properly found
that father had only demonstrated “changing circumstances,” rather than changed
circumstances.
Furthermore, for best interest of the child, father’s petition merely asserted that the
proposed order “would allow the minor the opportunity to reunify with his [sic] father.”
This general conclusory allegation was simply inadequate. (Edward H., supra, 43
13 Cal.App.4th at p. 593.) The petition did not allege how the proposed change would
promote the best interest of the child. (G.B., supra, 227 Cal.App.4th at p. 1157.)
Accordingly, there was no need for the court to order a hearing on the petition. (Zachary
G., supra, 77 Cal.App.4th at p. 806.)
Even on appeal, father fails to show it was in the child’s best interest to provide
him with services. He relies on three cases that are factually distinguishable and not
relevant to his petition. First, he cites Jeremy W., supra, 3 Cal.App.4th 1407, in which
the mother contended the trial court abused its discretion by summarily denying her
section 388 petition to modify its order terminating reunification services and setting a
section 366.26 hearing. (Jeremy W., at p. 1413.) The only stated basis for the court
terminating her services and setting a section 366.26 hearing was her “lack of stable
living accommodations.” (Jeremy W., at p. 1415.) The appellate court noted that the
three declarations accompanying the mother’s section 388 petition directly addressed this
issue. Specifically, the mother declared she had maintained her own apartment for some
time, and it was adequate for her and her child’s needs. (Jeremy W., at pp. 1415-1416.)
The court concluded the declarations established “a strong prima facie showing of a
favorable change in the single negative factor on which the referee purported to base his
section 366.21 order, if not its complete elimination.” (Id. at p. 1416.) In contrast, here,
father did not establish a prima facie case of either changed circumstances or best
interests. (See ante.)
Father also cites In re Daijah T. (2000) 83 Cal.App.4th 666 (Daijah). In that case,
the trial court summarily denied the mother’s section 388 petition, finding that it stated a
14 change of circumstances as to her personal circumstances and that of the siblings within
her care, but it did not state a change of circumstance as to the subject children. The trial
court also found the mother had not demonstrated it would be in her children’s best
interests for the court to grant a hearing on the petition. (Daijah, at p. 669.) The
appellate court reversed the judgment, concluding in part that the trial court erred in
finding the petition defective because it failed to allege a change of circumstances with
respect to the children. The appellate court stated the section 388 requirement was to
allege a change of circumstances with respect to the parent. (Id. at p. 674.) It also
concluded a modification would promote the best interests of the children by reunifying
them with their siblings, who were in the mother’s custody. (Id. at pp. 674-675.) In
contrast, here, the court properly focused on father’s circumstances and found they were
changing but had not changed. Moreover, father merely alleged the general conclusion
that granting him services was in the child’s best interest since “[i]t would allow the
minor the opportunity to reunify with his [sic] father,” and such allegation was
insufficient. On appeal, father now avers that the child’s reunification with him “would
have promoted her contact with her adult sister, with whom she was strongly bonded.”
However, father’s section 388 petition did not even mention the child’s sister.
Furthermore, unlike the children in Daijah, there was no evidence that reunifying the
child with father would mean she would see her sister more since her sister was an adult
who did not live with him.
Finally, father relies on In re Hashem H. (1996) 45 Cal.App.4th 1791, in which
the mother lost custody of her child because of her psychological problems. The
15 mother’s section 388 petition sought to regain custody and alleged as changed
circumstances that she regularly participated in psychotherapy, and her progress led her
therapist to opine her son should be returned to her custody. The mother further alleged
that she consistently visited him, held a job, and was ready and able to provide for the
child. (Hashem H., at p. 1797.) The mother attached a letter from her therapist
recommending that the child be returned to the mother. (Id. at p. 1798.) The Hashem H.
court concluded the prima facie showing of changed circumstances had been made, and it
was error to deny a hearing when there was evidence that the problems which led to
removal had been resolved. (Id. at pp. 1796-1799.) Here, unlike the mother in Hashem
H., father did not make a prima facie showing of changed circumstances and did not
present a letter from his therapist recommending that the court provide him with services
or that the child be returned to him.
We conclude the court did not abuse its discretion in denying father a hearing on
his section 388 petition. Even if the petition did allege an actual change of
circumstances, it did not allege any facts to support the conclusion that the child’s best
interests would be served by the order requested by father.
16 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
SLOUGH J.