In re Rebeca D. CA2/6 ( 2013 )

Filed 12/10/13 In re Rebeca D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
In re REBECA D., a Person Coming Under 2d Juv. No. B248936
the Juvenile Court Law. (Super. Ct. No. J069091)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
BERTHA. A.,
Defendant and Appellant.
The juvenile court terminated the guardianship of Bertha A. (Bertha), the
unrelated guardian of three-year-old Rebeca D. (Rebeca) and sustained a Welfare and
Institutions Code section 300, subdivisions (b) and (g)1 petition alleging that she failed to
protect Rebeca.2 Bertha appeals the order denying her section 388 petition for
reunification services and/or an order placing Rebeca in her care. We affirm.
1 All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
2 The court also sustained allegations that Rebeca's mother, R.D.D. (mother) failed
to support and protect her. The court subsequently terminated mother's parental rights.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, mother gave birth to Rebeca. Bertha was dating mother's uncle,
Greg T. She and Greg became Rebeca's legal guardians. Greg died in 2011 and Rebeca
remained in Bertha's care.
On September 5, 2012, Ventura County Human Services Agency (HSA)
received a report that Roy A. (Roy), Bertha's adult son, was living in her home, along
with three-year-old Rebeca. Roy had been in custody for approximately 18 months after
he was charged with committing sexual offenses against a young child. The charges
included sodomy with a child under the age of 10 years; aggravated sexual assault of a
child (sodomy); and continuous sexual abuse of a child. (Pen. Code, §§ 288.7, subd. (a),
269, subd. (a)(3), 288.5, subd (a).) The alleged victim's mother was Roy's common law
wife/girlfriend. The alleged victim claimed the offenses occurred when she was between
the ages of five and eight, while she lived with her mother, Roy, and their other children.
Roy moved into Bertha's home in late August or early September 2012, following the
dismissal of the charges. HSA concluded the charges were substantiated.
On September 5, 2012, a social worker visited Bertha's home. She told
Bertha it was not safe for Rebeca to live in her home while Roy lived there. Bertha
denied that Roy lived in her home. She "emotionally exploded" and yelled, "[T]here is
no way in hell you guys are going to remove my daughter from me, as my son did
nothing." Roy joined the discussion and admitted he lived in Bertha's home. After
further consideration, Bertha signed a safety plan which stated Roy could not reside in
her home and he would leave her home that day. Roy agreed to do so.
During the next several weeks, HSA learned that Roy made daily visits to
Bertha's home, sometimes late at night, and often ate, showered, and rested there. For
example, it received a report that Roy was involved in a verbal and physical altercation
with Bertha's teenage grandson, Gabriel. Gabriel was the son of Bertha's daughter,
Selena O. On October 11, 2012, the HSA social worker interviewed Selena. The social
worker subsequently interviewed Gabriel and Bertha. She learned Gabriel had returned
to Bertha's home one night, with Angel (Roy's teenage daughter, and Bertha's
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granddaughter). Gabriel and Angel were intoxicated, and Gabriel threw a bottle at
Selena's head. Roy intervened, disciplined Gabriel, and insisted that he and Angel leave.
Bertha acknowledged the incident occurred in her home around midnight. The social
worker expressed concern that Bertha permitted Roy to be "a significant contributor to
the parenting in the household." Bertha responded that Roy's daily presence in her home
was "good." She said, "[M]y grandchildren don't respect me because they think I'm too
old and now that he's here they respect me."
HSA further learned that Roy was a parolee, with multiple convictions. He
had a robbery conviction, with a gang benefit allegation in 2000 (Pen. Code, §§ 211,
186.22, subd. (b)(1)); and felony weapon offense convictions in 2003 and 2008 (former
§ 12020, subd. (a)). In addition, Roy was emotionally unstable. He threatened to commit
suicide more than once, and tried to kill himself in Bertha's home while Rebeca lived
there. On May 13, 2011, after he was accused of committing sexual offenses against his
girlfriend's young daughter, Roy hid in Bertha's home and barricaded himself in a
bedroom closet. A team of officers evacuated her home, used pepper spray, and knocked
down the closet door to reach Roy. He had cut his throat and both wrists and needed
medical treatment.
On October 24, 2012, HSA took Rebeca into protective custody. On
October 26, 2012, it filed a petition alleging Bertha failed to protect Rebeca. (§ 300,
subd. (b)) by allowing Roy to be in her home while Rebeca lived there.
The juvenile court received and considered several reports from HSA, and
approved Rebeca's detention and placement in foster care. During contested
jurisdictional and dispositional proceedings on January 23, 2013, HSA presented
documentary evidence, including multiple reports and memoranda. The November 26,
2012, jurisdiction and disposition report stated Bertha had already received "services
from [HSA] during her non-relative guardianship [and] from the previous social worker
during her contacts with the guardian and child." The report concluded Rebeca was "not
safe in [Bertha's] home due to continued exposure to verbal and physical altercations
[and] continued contact with [Roy, a] sexual perpetrator."
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Bertha testified at the January 23, 2012, contested jurisdiction and
disposition hearing. The juvenile court sustained the section 300 petition, terminated
Bertha's legal guardianship of Rebeca, and ordered the bypass of reunification services
for mother. The court set the section 366.26 permanency planning hearing for May 13,
2013. The court clerk provided Bertha with forms required to file a writ petition (JV820
and JV825) to challenge the court's January 23rd rulings and orders. Bertha did not file a
writ petition.
On May 16, 2013, the date of the continued section 366.26 hearing, HSA
filed its section 366.26 report. The report advised the court that Rebeca was "a happy
and adjusting three and a half-year-old girl who appears to be thriving in her current
placement," where she had lived since March 5, 2013. Rebeca appeared "to have a
positive relationship with her foster parents who are also her prospective adoptive
parents."
On May 16, 2013, Bertha filed a section 388 petition seeking reunification
services and/or an order placing Rebeca in her care. Counsel for HSA observed that
Bertha's handwritten statements in support of her petition showed she still did not
acknowledge the risk Rebeca had faced in her home. Bertha wrote, "never did I ever
risk[] her safety or her health." The juvenile court agreed: "I'm not convinced in any
way that [Bertha] understands why . . . the guardianship was . . . discontinued [or that she
had] an understanding of her need to protect the child." The court concluded Bertha
failed to make a prima facie showing that her petition required a full hearing, and denied
the petition. It also approved adoption as the permanent plan for Rebeca.
DISCUSSION
Bertha contends the juvenile court erred in summarily denying her section
388 petition seeking reunification services and/or an order placing Rebeca with her. The
law is to the contrary. The court is given broad discretion to deny a hearing if the request
for modification fails to state a change of circumstances or new evidence or fails to
demonstrate that the requested modification is in the best interests of the child. (Cal.
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Rules of Court, rule 5.570(d)(1) & ( 2); In re Zachary G. (1999) 77 Cal.App.4th 799,
808.) 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
"set forth in concise language any change of circumstance or new evidence that is alleged
to require the change of order or termination of jurisdiction." (Id. subd. (a)(1).) The
petitioner 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; In re Anthony W.
(2001) 87 Cal.App.4th 246, 250.) There are two parts to the prima facie showing: The
petitioner 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 child. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529.) "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 Anthony W., supra, at p. 250; In re Zachary G., supra, at p. 806.) The
petition must include "specific allegations describing the evidence constituting the
proffered changed circumstances or new evidence." (In re Edward H. (1996) 43
Cal.App.4th 584, 593.)
Bertha provided no substantial evidence of changed circumstances. Her
petition, and many of the supporting attachments, stressed the impact upon Bertha of
losing her guardianship of Rebeca and their relationship of several years. The
attachments included (1) Bertha's handwritten letter about her relationship with Rebeca,
who "brightened up [Bertha's] whole . . . life[;]" (2) a letter which verified Bertha had
recently completed an 8-week positive parenting class, with a certificate from the
parenting program; (3) a letter from Mercy Housing Resident Services Coordinator
commending and describing Bertha's resiliency, support of her family, and help to others
during 13 years he had known her as a resident of their properties; (4) a letter from a
therapist stating that Bertha recently received therapy for anxiety and depression; and (5)
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a letter from Bertha's daughter describing the relationship Bertha and her family have
with Rebeca, and their mutual bonds.
In claiming the juvenile court erred by denying her section 388 petition
without an evidentiary hearing, Bertha selectively emphasizes comments that counsel for
Rebeca made at the outset of the hearing. He indicated he had not had adequate time to
review the petition to assess whether it met the section 388 prima facie showing
requirements. Bertha thus argues that a hearing was necessary. We disagree. For the
most part, the comments of Rebeca's counsel reflect his reservations about Bertha's
ability to protect Rebeca. For example, he had "a lot of concerns about [Bertha] and
decisions she made and . . . actions that she took or didn't take that harmed [Rebeca]."
During the May 16, 2013, hearing, Bertha presented no evidence to supplement her
petition. Her counsel argued Bertha "was the de facto parent of [Rebeca] and should
have been granted services at the very least, even if placement is not likely at this point."
In contrast, Rebeca's counsel was "not sure that [Bertha] would have been granted de
facto status because of her lack of protection of [Rebeca] from things going on in her
household." He also did not favor delaying the hearing to address Bertha's section 388
petition more fully.
Moreover, Bertha made no showing that it would be in Rebeca's best
interest to be removed from a loving foster/adopt home to live with a guardian who did
not understand Rebeca needed protection from exposure to (1) ongoing verbal and
physical altercations and (2) an emotionally unstable parolee with substantiated charges
of committing sexual offenses against a young girl. Bertha also failed to establish that it
would be in Rebeca's best interest to grant Bertha's request for reunification services.
HSA had already provided her "services . . . during her non-relative guardianship [and]
from the previous social worker during her contacts with the guardian and child." Bertha
nonetheless failed to appreciate the risks Rebeca had faced in her care. The juvenile
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court did not abuse its discretion in denying Bertha's section 388 petition. (In re Anthony
W., supra, 87 Cal.App.4th at p. 250; In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
DISPOSITION
We affirm the order denying Bertha's section 388 petition.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Marissa Coffey, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leroy Smith, County Counsel, Linda Stevenson, Assistant County Counsel,
for Plaintiff and Respondent.
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