Los Angeles County Department of Children & Family Services v. Lilark W.

87 Cal. App. 4th 246, 104 Cal. Rptr. 2d 422, 2001 Daily Journal DAR 1975, 2001 Cal. App. LEXIS 120
CourtCalifornia Court of Appeal
DecidedJanuary 26, 2001
DocketNo. B140168
StatusPublished
Cited by1 cases

This text of 87 Cal. App. 4th 246 (Los Angeles County Department of Children & Family Services v. Lilark W.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Los Angeles County Department of Children & Family Services v. Lilark W., 87 Cal. App. 4th 246, 104 Cal. Rptr. 2d 422, 2001 Daily Journal DAR 1975, 2001 Cal. App. LEXIS 120 (Cal. Ct. App. 2001).

Opinion

Opinion

ALDRICH, J.—

Introduction

Lilark W. (mother), mother of six-year-old Anthony W., four-year-old Aireal L. and two-year-old Jonathan L., appeals from the order of the juvenile court denying her motion under Welfare and Institutions Code section 3881 for a modification of an earlier order terminating reunification services. We affirm the order.

Factual and Procedural Background

Mother was a dependent of the juvenile court at the time she gave birth to Anthony in 1994. Anthony became a dependent of the court upon an amended petition alleging mother’s minority and lack of ability and resources to care for the child. That petition was dismissed on April 17, 1995. (§ 390.)

On June 5, 1998, the Los Angeles County Department of Children and Family Services (the department) filed a new petition naming Anthony and the two additional children born to mother, Aireal and Jonathan. This petition alleged Jonathan had been bom in May 1998, with a positive toxicology screen for cocaine, and mother’s drag use rendered her incapable of caring for the children. (§ 300, subds. (b), (c) & (i).) Mother’s whereabouts were unknown. Mother had admitted using cocaine during her pregnancies and had no stable residence. The maternal grandmother explained that mother had a lengthy problem with drags and refused help. The court placed Aireal and Jonathan with their paternal aunt, ordered Anthony into shelter care, and ordered reunification services.

[249]*249In October 1998, the court sustained the petition declaring the three children dependents of the court under section 300, subdivisions (b) and (j). The court ordered reunification services for mother to include monitored visits with the children, individual counseling and conjoint counseling at the therapist’s discretion, parenting classes, drug counseling, and random drug testing.

By April 1999, mother had only partially complied with the case plan, and by October 1999, mother had still not completed the case plan. Mother never regularly visited the children and the record indicates she has not visited the children since June 1999. Meanwhile, the children appear well cared for and loved in their placement with their paternal aunt.

Although mother contested the permanent planning hearing, scheduled for November 15, 1999, she left the courthouse before the case was called and so her attorney submitted on the department’s recommendation. Thereafter, the court terminated reunification services to mother indicating that the department had made reasonable efforts to assist mother, but that those efforts had failed. Mother had not complied with the services provided, and had failed to remediate the drug addiction which led to the court’s jurisdiction. Still, the court allowed mother reasonable, monitored visits. The case was continued to enable the social worker to submit additional information as to one of the fathers.2

On February 16, 2000, the court terminated family reunification services upon a finding mother had not complied with the case plan, or resolved the issues which led to the court’s jurisdiction.

Thirteen days later, on February 29, 2000, mother filed the petition here at issue for modification under section 388. Therein, mother asked for return of her children or for additional reunification services and unmonitored visits. Mother alleged as changed circumstances or new evidence that she “has participated and completed the family reunification program, including drug counseling, drug testing and parenting [classes]. Further she visits the children on a regular basis. . . . Further mother has given birth to a new child which is not a dependent of the court. . . .”

The court summarily denied the petition without prejudice on the ground “no dates are mentioned or programs identified to determine ... if there has been a change in circumstances from the last hearing” and the “petition is [250]*250not signed by mother and there is no statement by [mother’s counsel] as to the source for the info[rmation] provided.” Mother appealed.3

Contention

Mother contends the juvenile court abused its discretion in declining to hold a hearing on her section 388 petition.

Discussion

Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. The petition must be verified and “shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.” (§ 388.)

The parent seeking modification must “make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 [19 Cal.Rptr.2d 544, 851 P.2d 826]; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414 [5 Cal.Rptr.2d 148].) There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would .be in the best interests, of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 [65 Cal.Rptr.2d 495].) If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [92 Cal.Rptr.2d 20].) We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1413.)

Mother failed to make the showing necessary to obtain a hearing. The petition may not be conclusory. “[Sjpecific allegations describing the evidence constituting the proffered changed circumstances or new evidence” is required. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 [50 Cal.Rptr.2d 745].) Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. In In re Jeremy W., [251]*251supra, 3 Cal.App.4th at pages 1413-1415, not only had the department’s reports evidenced the alleged change in circumstances, but the mother’s declarations attached to her section 388 petition directly addressed deficiencies in the reports, justifying a hearing on the section 388 petition.4

Here, mother merely asserted that she had “participated [in] and completed the family reunification program,” including drug counseling and testing and parenting classes, that she visits the children regularly, and that she had given birth to a “new child which is not a dependent of the court. . . .” These statements are conclusory. No mention is made of dates or names of counselors. The assertions are unsupported by any evidence such as certificates of completion or drug test results. (In re Edward H., supra, 43 Cal.App.4th at p. 593.) We reject mother’s argument that the court’s “findings” were “premature” because it was unable to assess mother’s asserted changed circumstances without holding hearing.

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Related

In Re Anthony W.
104 Cal. Rptr. 2d 422 (California Court of Appeal, 2001)

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Bluebook (online)
87 Cal. App. 4th 246, 104 Cal. Rptr. 2d 422, 2001 Daily Journal DAR 1975, 2001 Cal. App. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/los-angeles-county-department-of-children-family-services-v-lilark-w-calctapp-2001.