In re A.H. CA2/4 ( 2020 )

Filed 11/24/20 In re A.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.H. et al., Persons B300604 consld. with
Coming Under the Juvenile B302214
Court Law.
(Los Angeles County
Super. Ct. Nos. CK81609,
CK81609A, CK81609B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Phillip L. Soto, Judge. Affirmed.
Lisa A. Raneri, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Aileen Wong, Senior Deputy County Counsel,
for Plaintiff and Respondent.
INTRODUCTION
These consolidated appeals are the fourth and fifth appeals
by mother Jennifer H. (mother) from juvenile court orders
involving mother’s two children, A.H. and G.H. In February
2015, the juvenile court sustained a petition alleging that mother
had a history of untreated mental and emotional issues,
including bipolar disorder with psychotic features, that rendered
her incapable of providing the children with regular care and
supervision. In September 2017, reunification services for
mother were terminated. In June 2018, the juvenile court
ordered legal guardianship with the maternal grandparents as
the permanent plan for the children, and terminated juvenile
court jurisdiction.
Since then, mother has filed at least nine separate petitions
under Welfare and Institutions Code section 3881 seeking to
regain custody of the children, or in the alternative, expand her
visitation with the children to include unmonitored visits. In
each of her petitions, mother has asserted that the children are
being abused by maternal grandparents, and mother is mentally
healthy and ready to offer the children a loving home. Mother’s
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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allegations of abuse have never been substantiated. The juvenile
court has denied each of mother’s petitions.
In the current appeals, mother asserts that the juvenile
court erred in failing to appoint counsel to represent her at
hearings on two of her section 388 petitions. The Los Angeles
County Department of Children and Family Services (DCFS)
contends that even if the juvenile court erred, any such error was
harmless because mother’s section 388 petitions nevertheless
would have been denied. We agree, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts from opinion in prior appeal B285626
Extensive background facts are discussed in our opinion
addressing mother’s prior writ petition challenging termination
of reunification services, J.H. v. Superior Court (Mar. 14, 2018,
No. B285626 [nonpub. opn.]). In brief, A.H. was first declared a
dependent of the juvenile court shortly after her birth in 2010
when mother had a postpartum psychiatric episode. A petition
under section 300 was sustained, and the case was later
terminated. G.H. was born in 2012, and two months later the
children became dependents of the juvenile court after mother
had another psychiatric episode. The children were placed with
paternal grandparents. After another juvenile court case was
initiated, in April 2015 the children were placed with mother,
who lived in maternal grandparents’ home.
Mother’s care for the children was short-lived. DCFS
sought to remove the children from mother in October 2015, but
the court denied that request. Following another request, the
children were removed from mother’s care in January 2016 and
placed into foster care. In August 2016, the juvenile court
sustained DCFS’s petition under section 300, subdivision (b),
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which alleged that mother's bipolar disorder, paranoia, and
delusions endangered the children’s health and safety and placed
the children at risk of physical harm.
As discussed at length in our previous opinion, mother has
an extensive history of reporting that the children are being
threatened, physically abused, and/or sexually abused. Before
the children were placed with her in April 2015, mother alleged
physical or sexual abuse by maternal grandfather, the children’s
father, the children’s babysitters and daycare workers, and the
other children at daycare. While the children were in mother’s
care, she took them for multiple forensic examinations and
repeatedly told DCFS and the Los Angeles Police Department
(LAPD) that the children were being abused, and that maternal
grandparents were threatening the children and mother. After
the children were removed from mother’s care in January 2016,
mother accused maternal grandparents, the children’s father,
foster parents, and DCFS of physically and sexually abusing the
children. Mother’s aggressive behavior toward foster families,
including repeated calls to the families and allegations of abuse,
caused the children to be re-placed several times. The court
ordered mother to stop calling DCFS’s child abuse hotline, but
mother disobeyed the order and continued reporting abuse.
Mother sent long letters to the court with allegations that the
children were being harmed, and asked the court to place the
children with her.
Reunification services for mother were terminated in
September 2017. On appeal, we found the court’s order to be
supported by substantial evidence.
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B. Facts relevant to prior appeal B290483
Following a section 388 petition filed by maternal
grandparents, the children were placed in maternal
grandparents’ home in August 2017. Mother filed a section 388
petition on October 19, 2017, asking the court to reinstate
reunification services and return the children to mother’s care, or
in the alternative, liberalize mother’s visitation to include
unmonitored overnight visits. The court set a hearing on
mother’s petition. The hearing was continued multiple times, to
May 24, 2018.
On March 27, 2018, mother filed another section 388
petition characterized as an ex parte request, asking for
liberalized visitation with the children. The court summarily
denied the petition, finding that the change would not be in the
best interest of the children.
On May 24, 2018, DCFS filed an ex parte application
seeking a restraining order protecting the children from mother,
and an order that mother’s visits take place at the DCFS office, to
be monitored by someone other than maternal grandparents.
DCFS reported that between May 10 and May 13, mother
repeatedly reported to DCFS, to police, and on Facebook that the
children were being abused by maternal grandparents. On May
12 the social worker witnessed mother yelling outside of
maternal grandparents’ house saying to the children, “Tell the
social worker the truth. She’s not here to hurt you. . . . Tell her
the truth about Papa” (maternal grandfather). The children were
yelling back, “[M]ommy stop lying. Poppa doesn’t hit us.
Mommy stop lying.” After mother agreed to leave the home, A.H.
told the social worker, “I know [mother] is sick right now and this
is what happens when she is sick. My poppa would never hurt
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us.” On May 13, 2018, mother called adult protective services
and alleged that maternal grandparents were abusing the
maternal great-grandfather who lived in maternal grandparents’
home. Maternal grandparents reported that on the night of May
13, 2018, mother came to their home and threw rocks at the
house; she yelled, woke up neighbors, and threatened to call
police on maternal grandfather. Maternal grandparents and
neighbors called police; while mother was being arrested, she
began fighting and kicking the police officer. Mother was
arrested for battery on a peace officer, released on bail, then
hospitalized.
On May 24, 2018, the court ordered that mother’s visits
occur in the DCFS offices, and ordered mother to stay 100 feet
away from maternal grandparents’ home. The court continued
the hearing on mother’s October 19, 2017 section 388 petition to
June 6, 2018.
On June 1, 2018, DCFS filed an ex parte application to
temporarily suspend mother’s visitation until her mental health
stabilized. DCFS reported that at a recent visit mother
questioned A.H. about minor bruises, and A.H. told a social
worker privately, “I think my mommy is still sick. I don’t know
what to tell her anymore because she doesn’t believe me.” Both
children later said they did not want to visit with mother for the
time being. Mother again reported to DCFS and LAPD that the
children were being abused. Mother also went to the juvenile
court on May 30, 2018 and “was knocking and banging on the
door” to the courtroom. The professional monitor who had been
monitoring mother’s visits with the children said she would no
longer serve as a monitor due to mother’s threats against her.
DCFS found no evidence that the children were being mistreated.
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Mother, through counsel, filed a declaration repeating her
allegations of abuse and conflicts with the professional monitor,
who would not support mother’s allegations of abuse. Mother
also submitted a long email from mother to the court and an
email from mother to children’s counsel repeating her allegations.
On June 1, 2018, the court found that it was in the
children’s best interests for in-person visitation with mother to be
suspended, and limited mother’s visitation to professionally
monitored telephone calls. On June 1, 2018, mother filed a notice
of appeal. Mother’s appellate counsel filed an opening brief
under In re Phoenix H. (2009) 47 Cal.4th 835. This court
dismissed mother’s appeal on January 11, 2019.
C. Facts relevant to prior appeal B294126
1. July 6, 2018 section 388 petitions
On June 6, 2018, the juvenile court ordered legal
guardianship with maternal grandparents as the permanent plan
for the children. The court ordered monitored visitation with
mother by telephone only, and allowed maternal grandparents to
liberalize visitation at their discretion. The court terminated
jurisdiction. The same day, the court denied mother’s section 388
petition filed October 19, 2017, noting that it was denied after a
hearing.
On July 6, 2018, mother filed two section 388 petitions in
propria persona seeking to change the court’s June 6 order. The
handwritten petitions are difficult to read, but appear to state
that A.H. had bruises on her face and body from “Papa.” On July
24, the juvenile court denied the petitions without a hearing,
stating that the petitions were illegible. The court ordered
mother to consult with her attorney, and, “If appropriate, counsel
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for mother is to re-file typed WIC 388 petition on behalf of
mother.”
On June 26, mother’s counsel filed a motion to be relieved
as counsel, citing a breakdown in the attorney-client relationship.
On August 7, 2018, the court granted mother’s counsel’s motion.
2. August 7, 2018 section 388 petition
On August 7, 2018, mother filed another section 388
petition in propria persona, stating that the children “continue to
be covered from head to toe in bruises,” and they were being
“severely abused” by maternal grandparents. Mother asked that
the children be removed from maternal grandparents’ care and
returned to her custody, or alternatively, that mother be granted
unmonitored visitation. In a declaration attached to the petition,
mother said her counsel told her that her section 388 petition
“has great merit,” but asked to be relieved as counsel because
mother could no longer afford to pay for counsel. Mother stated
that the “children continue to be covered in bruises, and scratches
from head to toe, on a daily basis, EVERY TIME I SEE THEM.”
Mother said that G.H. begged her to call the police. Mother
stated that the children “are being severely beaten, and
emotionally abused, [as] well as sexually abused.” Mother
included photographs of A.H. and notes from mental health
professionals stating that mother was in therapy and compliant
with her medications. The court set a hearing on the section 388
petition.
On August 13, 2018, the juvenile court assigned attorney
Ryan Matienzo to represent mother. The court ordered DCFS to
investigate mother’s allegations, and ordered mother’s counsel to
“submit additional documents in support of Mother’s WIC388
petition by 9/19/18.”
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On August 22, 2018, mother through her counsel filed an
emergency walk-on request asking for the court to consider
moving the children from their “unsafe placement,” and to grant
mother unmonitored visitation. The court denied mother’s
request on August 28, 2018.
On September 19, 2018, DCFS filed a last-minute
information stating that mother’s claims of abuse were deemed
unfounded, and the referral was closed. The last-minute
information also stated that mother went to maternal
grandparents’ home on September 9 and “created a scene”; law
enforcement was called. Maternal grandparents sought and
received a restraining order requiring mother to stay away from
the maternal grandparents’ home and the children’s school.
On September 27, 2018, the court ordered an evidentiary
hearing on mother’s section 388 petition, set for November 8,
2018. An interim review report filed October 31, 2018 stated that
mother’s allegations of abuse were deemed unsubstantiated.
DCFS noted that various therapists regularly worked with the
children in the home and expressed no concerns. G.H.’s
behavioral therapist, who spent about eight hours a week in the
home, “reported absolutely no concerns of abuse by maternal
grandparents.” DCFS also noted that mother submitted an audio
recording of G.H. asking mother to call police. When asked about
her statement, G.H. told DCFS, “Every time I have a visit with
[mother], I don’t feel safe. I think when the monitor is not
looking, mommy can grab me. I want the police to check on me. I
just wanted them to come.” The interim review report stated,
“Upon further investigation, it appears that due to the repeated
calls and investigations to law enforcement, the child [G.H.] has
developed a certain fondness of law enforcement, and enjoys
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having them around.” The interim review report stated in bold
typeface: “The Department stresses to the Court that there is no
substantial evidence of child abuse within this family.” DCFS
recommended that mother’s section 388 petition be denied.
The interim review report also included a copy of a criminal
court minute order stating that on July 12, 2018, mother was
convicted of battery (Penal Code section 242) for the incident in
May 2018 at maternal grandparents’ home. The criminal court
also ordered mother not to “harass or molest any person or
witness involved in this case,” to stay 100 yards away from
maternal grandparents’ residence, and enroll in and complete a
one-year mental health counseling program. Also attached to the
report was a petition for a restraining order filed by the City of
Los Angeles seeking to restrain mother from contacting LAPD
regarding her allegations of abuse. A declaration by the captain
and commanding officer of the Devonshire Patrol Division, Paul
M. Weber, stated that mother’s repeated 911 calls, emails to
police, voicemails, and in-person requests for assistance were
“interfering with the operations of the Devonshire Patrol Division
and its ability to timely respond to and address the needs of the
public.” Weber noted that mother called 911 54 times on August
8, 2018; he also attached some of mother’s emails as exhibits.
The interim review report noted that maternal grandparents now
lived in Simi Valley, in Ventura County. The date of the move is
not indicated in the record. Maternal grandfather reported that
Simi Valley Police Department (SVPD) had been called on them
about ten times so far.
At the hearing on November 8, mother was represented by
counsel, and she testified. Mother admitted that maternal
grandfather had a restraining order against her and she was
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prohibited from going to the children’s school. However, when
discussing difficulties regarding visits with the children, mother
said, “I don’t think that I’m the problem.” Mother said her recent
hospitalization “wasn’t for [the] psychiatric situation. It was
because I was homeless, and I literally had nowhere else to go.”
Mother said she was no longer homeless; she was staying at a
hotel. On cross-examination, mother denied that she called
police on maternal grandfather multiple times in a single day.
Counsel for the children and DCFS asked that mother’s
petition be denied. Mother’s counsel asked that the petition be
sustained, and asked the court to “consider a home of parent
order. Nowhere in the evidence is there [anything] suggesting
that my client has been inappropriate in regards to her children.”
Mother’s counsel asked in the alternative for overnight visits or
unmonitored visitation. The court denied mother’s petition,
stating, “It’s clear from the documentation supplied to the court
and from mother’s testimony that circumstances have not
changed in this case that would justify removing the children
from the grandparents or changing the orders for visitation.” The
court noted that the case was closed and jurisdiction was
terminated.
Mother appealed the court’s ruling. Her appellate counsel
filed a brief under In re Phoenix H., supra, 47 Cal.4th 835.
Mother filed seven supplemental briefs. This court dismissed
mother’s appeal on April 19, 2019.
D. Facts relevant to the current appeals, B300604 and
B302214
1. April 2, 2019 section 388 petition
On April 2, 2019, mother filed a section 388 petition in
propria persona asking the juvenile court to “return my children
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to me.” In the section on the form asking about changed
circumstances, mother wrote, “Since the court closed the case I
have obtained appropriate housing to have both children
returned to me. I can also provide educational and well as health
care for my children [sic].” In the section asking why the change
would benefit the children, mother wrote, “I am bonded to my
children and they miss their mother very much. As such, I am
now in a position to have them in my care.”
Attached to the petition was a single-spaced, four-and-a-
half page letter from mother outlining the “many positive
changes in my circumstances since the last time” she was in
court, including obtaining housing. Mother stated that although
these things were positive, “[t]here are some negatives, and that
is the unfortunate, ongoing abuse of my parents toward my
children. My children continue to be covered in bruises every
time I see them. . . .” Mother continued, “On February 11, 2019 I
have very good reason to believe that my dad raped [A.H.].”
Mother said she contacted the SVPD, and officers questioned
maternal grandparents and the children. The police deemed the
allegation unfounded, but mother insisted that the officers did
not do an adequate job because they only questioned the children
for “about a minute each,” and “[t]hat is not how a child rape
investigation is supposed to be done. It was flawed.”
Mother repeated many of her previous allegations about
maternal grandparents, including that maternal grandfather
raped mother as a child and that G.H. was at risk of being held
back in first grade “because of her chronic problem of ongoing
masturbation ALL DAY LONG in class.” Mother stated, “I have
never been more stable, more calm, more steady, healthy and
centered. I know I have truth on my side . . . .” Mother stated,
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“My children belong with me, their healthy, stable, loving
Mommy, who has never abused them, never abandoned them,
never neglected them and does not drink alcohol or do drugs. . . .
Please give my daughters the best chance at true happiness and
the healthiest, most stable life they can have with me, their
loving Mommy.”
The court denied mother’s section 388 petition ex parte2 on
April 11, 2019. Counsel for DCFS and the children were present;
mother was not present. The court stated on the record and in its
written order, “Mother’s assertions have been discredited several
time [sic] already in numerous, lengthy hearings. It has been
explained to mother by the court several times that even if her
allegations against the grandparents were true, that would not
necessarily be grounds for return to mother given the facts and
evidence proven against mother. It is not in the best interest of
children to set a hearing.” The court’s minute order stated, “The
388 WIC petition filed April 2, 2019 is denied without hearing.
[¶] Jurisdiction remains terminated.”
2. July 8, 2019 section 388 petition
On July 8, 2019, mother filed another section 388 petition
in propria persona, again asking for custody of the children. In
2Under California Rules of Court, rule 5.570, a court has
four options for addressing a section 388 petition: it may (1) deny
the petition ex parte (rule 5.570(d)), (2) “order modification
without a hearing” if “all parties stipulate to the requested
modification” (rule 5.570(f)), (3) “order that a hearing on the
petition be held within 30 calendar days after the petition is
filed” (rule 5.570(f)(1)), or (4) “order a hearing for the parties to
argue whether an evidentiary hearing on the petition should be
granted or denied” (rule 5.570(f)(2)).
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the section of the form asking about changed circumstances,
mother stated that she had a home and a job, and that she was
“very healthy and stable.” In the section asking why the change
would benefit the children, mother wrote, “It would be better for
my children because literally every time I see my children they
have new bruises that they say they don’t know where they got
them from. They are learning about a satanic cult + mass
destruction and evil people that want to take over the world.”
Mother’s handwritten statement continued, and is marginally
legible. It appears to state, “On July 2nd [G.H.] made up a song .
. . ‘you can punish me and abuse me . . . and I’ll still love you . . .
but I’ll love you even more if you don’t.[’] [A.H.] sounded drugged
and could barely speak. She said ‘Call the police, call the fire
department and say your daughter was raped.’ Someone is
sending me texts and pornographic pictures of [G.H.] from my
mom’s phone saying it’s [G.H.] – but it’s not.” (Ellipses in
original.) Six photos of a child are attached to the petition.
Mother submitted a two-page, handwritten letter with her
petition, stating, “I am filing this emergency 388 because my
children have let me know they are still not safe in the legal
guardianship of my parents. They have let me know it’s an
emergency and they need to be rescued as soon as possible.”
Mother stated that maternal grandmother has both children “on
ADD medication but they don’t have ADD. [ ¶] [A.H.] has lost
about 15 pounds and told me ‘food is evil don’t eat it.’” Maternal
grandparents were “out of control! They cannot handle raising
my two active girls” because they were “disabled with back and
knee problems,” and maternal grandmother “has collapsed about
8 times in this past year.” Maternal grandfather lies in the
children’s beds with them to tell them bedtime stories, and when
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mother tells maternal grandmother that she is uncomfortable
about this, maternal grandmother “screams at me and tells me
they like it.” Mother closed the letter by stating, “I am the most
loving guardian for them. Please give them back to me – so I
may raise them in love – with no more abuse and toxicity. Thank
you.”
On July 12, 2019, the court addressed mother’s section 388
petition ex parte. Counsel for DCFS was present; mother did not
appear, and the court noted that counsel for the children was “out
of town.” The court stated on the record, “The court has made it
clear numerous times over to these [sic] continued requests by
mother that even if these allegations that she’s making against
the caretakers were to be true, that does not mean that she gets
the children back.” The court stated that the petition was denied
without a hearing.
On July 22, 2019, mother filed a notice of appeal from an
unspecified order in which “the judge denied my 388 petition
w/out a hearing.” This appeal was assigned number B300604. In
her briefing on appeal, mother does not assert any errors with
respect to the July 8 petition.
3. July 22, 2019 section 388 petition
On July 22, mother filed another section 388 petition in
propria persona, again asking the court to return the children to
her custody. In the section of the form asking about changed
circumstances, mother noted her new home and her job, and
stated, “My children reported being physically abused by my
parents last May. They continue to be covered in bruises all over
their body. My father sleeps in their beds with them every
night.” In the section asking why the change would benefit the
children, mother wrote, in part, “I am stable, healthy, and young
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and well. My parents are 76 and disabled. My mom shattered
her knee and can barely walk. I am the more ‘fit’ healthy stable
guardian for my children.”
Mother attached a typewritten letter to her petition. She
stated that her last two petitions were “denied on the spot
without even giving us a court date to see what the true change
of circumstances is and why my attorney and I feel more ready
now than ever to be reunited with my precious daughters. . . .”
Mother stated that the children “remain unsafe and abused by
the maternal grandparents in their legal guardianship.” She
wrote that the children “CONTINUE to be covered in multiple
bruises ALL over their little bodies every time I see them,” and
their explanations don’t “seem realistic.” Mother stated that
maternal grandparents “have everyone working with them, the
DCFS and Simi Valley Police.” Mother repeated her contention
that G.H. once begged her to call the police. Mother said her
attempts to report abuse to Ventura County DCFS personnel had
been unsuccessful, because they would not accept a report when
they “know it is coming from me.” Ventura County DCFS
instructed that mother’s attorney should call them if needed, but
mother stated, “I do not have an attorney at the time.”
Mother continued, in bold typeface, “May I remind you that
it was downright ILLEGAL for the DCFS to remove my children
from my full custody and care in January 2016 when I had
NEVER abused, neglected, or abandoned them . . . and when
there were NO exigent circumstances.” (Ellipses in original.)
Mother closed the letter by stating, “So, please take this as an
emergency and grant us a hearing this week to protect my
children and return them back into my full custody and care
where they are praying and begging to be!” Mother also attached
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a short letter from Tarzana Treatment Centers dated May 23,
2019, stating that mother “enrolled in mental health services at
Tarzana Treatment Centers on December 18, 2018,” and mother
“is very active in her treatment and consistently attends her
weekly therapy sessions.”
On August 19, 2019, the court—with Judge Craig S. Barnes
presiding rather than Judge Philip L. Soto, who had heard the
other portions of the case—addressed mother’s section 388
petition. Mother, counsel for DCFS, and counsel for the children
were present. Counsel for the children asked that the petition be
denied, stating that mother’s section 388 petition was filed in pro
per in violation of the rules of court, and it was filed ten days
after Judge Soto denied a nearly identical petition. The
children’s counsel also stated, “Mother has filed nine 388’s since
the case has closed.” Counsel for DCFS joined these statements.
Mother asked to be heard. She stated, “There’s been an
ongoing child abuse case that’s been denied by the judge. My
father raped me. . . . And then three weeks before [the judge]
gave them legal guardianship, my daughter reported being beat
so badly by my dad that he made her want to die.” Mother stated
that the children were “covered in bruises,” but mother was
barred from calling the child abuse hotline. Mother said that
maternal grandfather “forced my daughters to perform oral sex
on him this weekend,” which mother knew because the children
FaceTimed her and said, “ ‘Mommy, don’t say anything.’ [¶] And
she put the phone down. And it was my mom and my dad . . .
sighing and making all kinds of sexual noises. [¶] And then I also
have a disc of eight recordings where my daughter is reporting
being beat so badly by my dad that it makes her want to die. My
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mother hurting the children and them crying and saying: You’re
hurting me. You’re hurting me. Please stop.”
The court interrupted, and asked mother if she had any
response to counsel’s contention of “procedural and substantive
objections.” Mother stated, “I am allowed to file a 388 because I
don’t have an attorney. . . . [A]nd I don’t have anybody to
represent me, I am – I was told by the court that I am absolutely
allowed to file a 388.” Mother said that her nine previous section
388 petitions “should be a red flag” because “Judge Soto is not
taking me seriously when I say that, as the mother, my children
are being abused.” Counsel for the children objected, and the
court stated, “I think I’ve heard your argument, and so I’m
prepared to rule. [¶] The court is going to deny the 388 on
procedural, substantive grounds as set forth by minors’ counsel.
They are well-supported, and the basis for the 388 is not well-
supported.” The court’s minute order stated, “The 388 WIC
petition filed July 22, 2019 is denied after hearing. [¶]
Jurisdiction remains terminated with Legal Guardianship and
Kingap in place.”
Mother filed a notice of appeal the same day, stating that
Judge Barnes denied her section 388 petition despite telling him
that maternal grandparents were abusing the children. This
notice of appeal was assigned the same appellate case number as
mother’s appeal from her July 8 section 388 petition, B300604.
4. August 26, 2019 section 388 petition
On August 26, mother filed another section 388 petition in
propria persona, again asking the court to return the children to
her care. In the section of the form asking about changed
circumstances, mother wrote, “Last Saturday my daughter placed
down the phone and I witnessed auditorally [sic] my parents
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sexually molesting (if not raping my children). Police and DCFS
refuse to investigate. My children are in great danger. I am
healthy, stable, have a great job and great home. I am ready for
my daughters to come home to me.” In the section asking why
the change would benefit the children, mother wrote, “It would be
better because my parents are raping, beating + emotionally
abusing my children. They are suffering and failing in school.
My daughters belong with me and want to be with me. It is our
constitutional right to live together as a family.”
Mother attached a single-page declaration stating, “I am
writing this declaration to inform the Court as I have with my
last nine 388 petitions that this is an EMERGENCY and my
children are in imminent danger in the legal guardianship [of]
the maternal grandparents.” Mother asserted that she had been
punished for attempting to protect the children. Mother added, “I
could have gone to the Commission on Judicial Performance on
you a long time ago for your gross judicial misconduct and abuse.
I have decided to give you one last chance before doing that to do
what is right and just and protect my children and return them
to my full custody and care as soon as possible.” Mother also
included a letter from Tarzana Treatment Centers dated August
16, 2019, stating that mother was enrolled in mental health
services and “is very active in her treatment and consistently
attends her weekly therapy sessions.”
The court, with Judge Soto presiding, addressed mother’s
388 petition on September 9, 2019. The court stated that this
was “another in a string of 388’s filed by mother trying to regain
custody of [the children] with allegations against the maternal
grandparents.” Counsel for the children noted that mother’s new
claim of hearing the maternal grandparents on the phone
19
sexually abusing the children arose following a separate incident
in which at the end of a visit, mother “proceeded to say good-bye
to the girls, forced them in the car and then she took off. The
grandparents then called 911 at which point then mother turned
around and dropped off the kids. So there have not been visits to
the mother since then.” The court asked if it was “an attempted
kidnapping,” and the children’s counsel responded, “Essentially.”
The children’s counsel also stated that the SVPD had received
about 55 calls from mother alleging sexual abuse, and was “no
longer responding to her calls.” The police recommended that
maternal grandparents “file a 388 to get stronger language on the
visits” to protect the children, and the children’s counsel stated
that maternal grandparents were working on preparing
something to file in Ventura County. Children’s counsel added,
“For the record, the mother sent me an e-mail and threatened me
if I inform the court about the attempted kidnapping, she would
report me to the state bar.”
The court stated, “I think we all need it on the record in a
hearing, and a statement from the grandparents of her
attempting to kidnap the children and their response being that
they curtailed her visitation orders and preparing a 388 of their
own; and the statement from Simi Valley PD that because of the
nature of mother’s calls, they’ve stopped responding to her
complaints.” The court ordered an evidentiary hearing on
mother’s petition, scheduled for October 21, 2019. The court also
stated in its minute order that DCFS was to “prepare a report
addressing said petition,” and, “Court is to be provided with
statements from the Grandparents and Simi Valley police
Sergeant Morray, in particular re: assertions by the
20
grandparents that Mother attempted to kidnap the minors, prior
to visit. DCFS to also provide statements from Mother re: same.”
On October 17, DCFS filed a last-minute information
stating that the parties had been interviewed, but DCFS needed
an additional two weeks to prepare the report due to the
investigator being out on leave. At the originally scheduled
hearing date of October 21, the court noted that counsel for DCFS
and counsel for the children were present. Counsel for the
children asked if he should go get mother, and the bailiff asked,
“Where is Mr. Matienzo?” referring to mother’s former counsel.
The court responded, “He’s not on the case anymore. This case is
closed.” The court noted that mother was present, and continued
the hearing to November 8.
On November 1, 2019, DCFS filed its report. In her
interview with the DCFS investigator on October 2, mother
repeated her allegations about maternal grandparents being
unfit guardians, including mother seeing bruises on the children.
Mother said she had a recording of A.H. disclosing abuse, but
when the investigator asked mother for it, mother refused to
provide it because she would be “accused of coaching.” Mother
also said that a police officer agreed with her that the children
were being abused, but when the investigator asked for the date
of that discussion or the officer’s information, mother could not
provide those details. Mother said she visits with the children
sporadically, and that maternal grandmother is the monitor.
Mother said she had a paid monitor until about a month earlier.
When the investigator asked for the monitor’s phone number,
mother said she could not provide it “because I’d have to sign a
release. She makes me sign releases.”
21
Mother repeated her allegation that she thought maternal
grandfather was sexually abusing the children because on a
“pocket call” she heard heavy breathing and what sounded like
inappropriate contact. Mother said that both children “are now
masturbating none stop [sic] by rocking back and forth in their
chairs.” Mother said it happens every day at school, and G.H.
might be held back a grade as a result. Mother also stated that
both children have boyfriends, but they are too young to have
boyfriends. Mother told the investigator that she was concerned
that maternal grandparents played an “alphabet game” with the
children using letters to denigrate the children’s father, such as
“A is for asshole . . . B . . . C is for when he cut them . . . and so
on.”
Mother stated that she has had five involuntary
hospitalizations, with the most recent in July 2019. Mother said
she had been seeing a therapist for six years but they were “no
longer seeing eye to eye.” When the investigator asked mother
for the therapist’s contact information, mother said, “I’d rather
not give you that.” Mother also said she was no longer seeing her
the psychiatrist she had seen for 18 years. Mother was in
treatment at Tarzana Treatment Centers.
The investigator interviewed the children and maternal
grandparents at their home. A.H., age 9, told the investigator
that no one had ever touched her inappropriately, and she was
disciplined by having her privileges taken away. She stated, “I
know my mom always thinks that my grandparents hit us but it’s
not true . . . they never hit us.” (Ellipses in original.) A.H. said
that visits with mother occur in public places because mother is
no longer allowed to come to the home. A.H. said that at the last
visit, as they were walking to grandmother’s car to leave, mother
22
“instructed the children to get into her car and sped off.” A.H.
reported that G.H. began crying because she was scared, and
mother said she was taking them to the police station “to finally
tell the truth.” A.H. denied that grandparents played any
alphabet game regarding father. A.H. said that she did have a
boyfriend, but they do not kiss; they only hold hands and play
video games together. A.H. said she wanted to continue living
with maternal grandparents. The investigator observed
“scattered bruising” on A.H., but no “visible marks or bruises on
the children indicating abuse or neglect.”
G.H., age 7, also told the investigator that that no one had
ever touched her inappropriately, and she was disciplined by
having her privileges taken away. She denied that maternal
grandparents had ever hit her, and denied feeling uncomfortable
around maternal grandfather. G.H. said she felt safe during
visits with mother because maternal grandmother was there.
She stated that she did not have a boyfriend, although she once
pretended to when A.H.’s boyfriend was over for a play date.
G.H. also denied that grandparents played an alphabet game
regarding father. G.H. said she wanted to remain living with
maternal grandparents.
Maternal grandparents told the investigator that they were
concerned about mother’s mental health. Although in the past
mother had bipolar episodes and periods of stability, recently it
seemed that mother had been unable to gain stability. Maternal
grandparents stated that in July 2019, mother made eight police
reports on the same day and called the children’s school to report
that maternal grandfather was a “pedophile.” Maternal
grandfather stated that mother also “made all sorts of sexual
allegations” against him in the presence of the children and their
23
friends on the school campus. Maternal grandfather’s restraining
order against mother expired in October 2019.
Regarding the recent incident, maternal grandmother
stated that as a visit with mother was ending, mother instructed
the children to get into her car and then drove away. Maternal
grandmother also stated that the children were active and would
“bang up” their legs; mother often questioned the children about
their bruises and then generated abuse referrals. Maternal
grandmother said both children had been diagnosed with PTSD,
and both were on medication for ADHD. Maternal grandparents
acknowledged that the children had exhibited “sexualized
behavior at school by rubbing on the chairs while in class,” but
both children had “grown out” of that behavior after being
assessed for ADHD. Maternal grandmother stated that the
school had not suggested that either child would be held back.
Report cards for both children were included with the report, and
both state that the children were doing well in school with no
major concerns. Maternal grandparents acknowledged that A.H.
had a boyfriend; they had play dates together and were
supervised at all times.
On October 14, mother left voicemail messages for the
DCFS investigator stating that she had just visited with the
children, and “[t]hey were covered in bruises,” and “I guarantee
you that they are getting hit.” Mother also said that G.H. had a
raspy voice, which mother attributed to the children being yelled
at by maternal grandparents and having to yell back to defend
themselves. In a second voicemail, mother said that the children
had bruises “all over their legs” and, “It really seems like my dad
really wants to get caught because they were wearing the
shortest shorts.” Mother said she followed A.H. into the park
24
bathroom and tried to question her about the bruises, but
maternal grandmother “stormed in” and stopped her. In a third
voicemail, mother said that the children told her they want to
testify in court to “tell [the judge] that we should not have been
taken away from you and want to come home to you.”
The DCFS investigator stated that she had left messages
for the children’s therapist and psychologist, and mother’s
therapist and psychiatrist, and was awaiting return calls. DCFS
was also awaiting information from the SVPD.
DCFS stated that it “continues to have serious concerns
regarding mother’s mental health. The minors have endured
continuous upheaval in their upbringing due to the mother’s
ongoing mental health issues, which render her incapable of
providing stable care for the minors. Law enforcement has
completed numerous welfare checks on the children and denied
any concerns of abuse/neglect,” and the children “den[ied] the
allegations on numerous occasions.” DCFS noted that mother
had been hospitalized in July 2019, she attempted to kidnap the
children in September 2019, and “[b]etween May 2018-September
2019, LA County and Ventura County DCFS have received
approximately 48 referrals” resulting from mother’s allegations.
DCFS recommended that the petition be denied, because it would
not be in the children’s best interest to move them from their
placement with maternal grandparents or to place them with
mother.
At the hearing on November 8, 2019, counsel for DCFS and
for the children appeared, and the court noted, “[B]ecause this is
a closed case, mother is representing herself on the 388 that she
filed for each child. . . .” The court denied mother’s proffer of
evidence, which included what mother described as
25
“inappropriate” videos posted on TikTok in which the children
were “cursing saying all kinds of bad words and talking about
their father.”
Mother testified that “the reason why [the children] were
taken away from me” the first time “was because I had a very
strong reason to believe that my father sexually molested my
daughter.” Mother said that as soon as she voiced that concern,
“basically, because I thought my daughter was molested by my
dad, and I said that I was molested, suddenly I was delusional,
and I got my kids taken away for two and a half years.” Mother
said that after the children were returned to her custody in 2015,
she lived in maternal grandparents’ home and “it was a toxic
relationship between me and my parents. And that’s why you
[Judge Soto] put a stay away order there.” Mother testified that
her former attorney, hired by maternal grandparents, “wouldn’t
let me testify,” and as a result, Judge Soto “never really had the
full story.” Mother recounted her version of the events in
January 2016 that resulted in the children being detained from
mother.
The court asked mother to focus on the allegations of her
current section 388 petition. Mother stated, “[T]his is not about
attacking my parents. It’s about simply focusing on my fitness . .
. my doctors are saying that I’m very healthy; that I’m very
stable; and that I’m very capable of caring for my children and
that my children should be returned to me.” Mother stated that
by contrast, maternal grandparents “are disabled. They have
handicap placards. My mother fell into the pool at night. Almost
drowned. Broke her knee. She can barely walk.”
Mother continued, “I am not calling the police and saying
‘For sure I know my kids are being abused.’ [¶] I am calling them
26
and saying, ‘Every single visit that I see my daughters, they have
multiple bruises. . . .’” Mother said, “I’m so tired of this
constantly being blamed on, ‘[Mother] having a mental health
condition. [Mother] is mentally ill, because she’s making calls.’”
Mother said the children’s and maternal grandparents’
explanations about the bruises did not make sense. For example,
A.H. takes dance classes, and “She’s a graceful little girl. She’s
not falling all the time.” But when mother asks the children
about their bruises, “my mother, she screams, ‘The visit’s over.
There you go again with your allegations again.’”
Mother also testified, “Now another thing that’s concerning
to me is that my children sleep in my parents’ bed every single
night, every single night.” Mother wanted maternal grandfather
to take the stand so she could question him about that, but the
court denied her request. Mother also said that maternal
grandfather “yells and screams at [the children] on a daily basis.
My mother, there’s never one time that they are on the phone
with me that she’s not yelling and screaming in the background.”
Mother said that she felt as if maternal grandparents “are in
competition with me” and were trying to “show that they are
better, they are smarter than me; that they can do a better job.”
But mother stated, “I am very capable of caring for my children.
[¶] And I wasn’t really given a fair chance.”
The court asked counsel for the children if he had anything
to add. Counsel noted the “extremely concerning” incident in
September 2019 in which mother put the children in her car,
saying she was going to take them to the police so they could
disclose that they were being abused. Mother interjected that the
children got into the car voluntarily, “And I did ask them. I said,
‘Are you being –’ [¶] It was our only time alone. I said, ‘Are you
27
being abused?’ I said, ‘I will take you to the police station.’” But
mother said that she did not “speed off,” instead, “I went and
parked the car. I did not go anywhere.” The children’s counsel
stated that according to the DCFS investigator, the children
“were fearful of what happened. We are asking to revert the visits
to sole discretion of the grandparents, monitored by a
professional monitor.” Mother objected, stating that she could
not afford a professional monitor, and stating, “All I can afford is
one hour per week. Why do I have to be punished? I am being
punished for trying to protect my children.”
The children’s counsel also noted that there had been 48
referrals to DCFS and Ventura County DCFS, and that the
SVPD attempted to get a restraining order against mother.
Mother interjected that the request had been denied. The
children’s counsel concluded that none of mother’s allegations of
abuse had been corroborated by any other sources. Counsel for
DCFS did not assert any additional arguments.
The court began to state its findings from the bench. After
being interrupted by mother twice, the court told mother that if
she interrupted again, she would be removed. After mother
interrupted a third time, the court ordered her out of the
courtroom. After the bailiff removed mother, the court stated,
“The court has throughout the pendency of the lawsuit . . . given
mother every chance to keep the children or get the children
back. [¶] It’s clear to this court that this mother has mental
health issues. . . . [¶] The claims that she’s making are
unfounded. The children are doing fine, better than fine. . . .
[T]hey are doing well in school under the care of their
grandparents, the legal guardians. . . . They do not want to
return to their mother nor would it be in their best interest to do
28
so.” The court therefore denied the section 388 petitions mother
filed on August 26, 2019, stating, “There’s no change in
circumstances. It’s not in the best interest of the children to
terminate the guardianships or to return to mother.” The court
noted that jurisdiction remained terminated.
Mother filed a notice of appeal the same day, November 8,
2019. The appeal was assigned case number B302214. On July
20, 2020, we consolidated mother’s two appeals.
5. November 8, November 21, and December 9, 2019
section 388 petitions
Later the same day, November 8, 2019, mother filed a new
section 388 petition asking the court to terminate maternal
grandparents’ guardianship and award custody of the children to
mother. On November 21, 2019, mother filed another section 388
petition, asking the court to terminate maternal grandparents’
guardianship and award custody to mother, or to order
unmonitored overnight visitation. Mother included two letters
stating that she was in mental health treatment, as well as a
declaration requesting appointment of counsel and accusing the
judge of being biased against her.
On December 9, 2019, the court ex parte denied mother’s
section 388 petitions filed on November 8 and November 21.
Mother, counsel for DCFS, and counsel for the children were
present. Mother told the judge that she wanted an attorney to be
appointed for her, and said she should have had an attorney at
the November 8 hearing. The court allowed mother to state on
the record similar allegations to those she made in previous
petitions and at the November 8 hearing. Mother again asked for
an attorney, and the court stated, “You did not ask for an
attorney at the [November 8] hearing. . . . Unless and until I
29
reopen this case again, it remains in a closed status. The lawyer
from the firm that had represented you before will not represent
you unless I open the case again.” The court found no basis to
change its prior order, and therefore denied mother’s November 8
and November 21 section 388 petitions. The court noted that
jurisdiction remained closed, and mother’s visitation was to
continue to be monitored. Mother filed a notice of appeal the
same day, which was included with case number B302214.
The same day, December 9, mother filed another section
388 petition asking the court to terminate maternal
grandparents’ guardianship and award custody to mother, or to
order unmonitored overnight visitation. No court order
addressing the December 9 section 388 petition is included in the
record on appeal. Mother filed another notice of appeal on
December 11, 2019, which does not indicate the date of the
court’s order mother was appealing from; it was assigned to case
number B302214. On appeal, mother does not assert any errors
with respect to the section 388 petitions filed on November 8,
November 21, or December 9, 2019.
DISCUSSION
In her two appeals, which were consolidated after briefing,
mother asserts that the juvenile court erred by failing to appoint
counsel to represent her at the August 19 hearing before Judge
Barnes and the November 8 hearing before Judge Soto. A
juvenile court is required to appoint counsel for a parent “[w]hen
it appears to the court that a parent . . . is presently financially
unable to afford and cannot for that reason employ counsel, and
the child has been placed in out-of-home care, . . . unless the
court finds that the parent . . . has made a knowing and
intelligent waiver of counsel as provided in this section.” (§ 317,
30
subd. (b).) “Counsel shall represent the parent . . . at the
detention hearing and at all subsequent proceedings before the
juvenile court.” (Id., subd. (d).) In addition, “At each hearing, the
court must advise any self-represented child, parent, or guardian
of the right to be represented by counsel and, if applicable, of the
right to have counsel appointed, subject to a claim by the court or
the county for reimbursement as provided by law.” (Cal. Rules of
Court, rule 5.534(c).) Mother has not cited any authority
addressing whether a parent continues to be entitled to counsel
where, as here, the juvenile court has terminated jurisdiction.
Mother asserts that the court ordered evidentiary hearings
on her section 388 petitions filed July 22 and August 26. Noting
the mandate that “Counsel shall represent the parent . . . at the
detention hearing and at all subsequent proceedings before the
juvenile court” (§ 317, subd. (d)), mother asserts that the juvenile
court erred by failing to appoint counsel to represent mother at
those hearings.3
Mother relies on In re J.P. (2017) 15 Cal.App.5th 789,
which involved a juvenile court case spanning several years. At
one hearing in which the court ordered the child moved from
3Although Judge Barnes stated that mother’s section 388
petition was denied “after a hearing,” no separate hearing was
ordered, and thus it is not evident that the court conducted an
evidentiary hearing pursuant to Cal. Rules of Court, rule
5.570(f)(1), or even “a hearing for the parties to argue whether an
evidentiary hearing on the petition should be granted or denied”
(rule 5.570(f)(2)). In her opening brief, mother asserts that the
August 19 court appearance constituted a “hearing” rather than
an ex parte denial. However, the distinction is not relevant to
our analysis.
31
placement with his legal guardians to a group home, the juvenile
court also relieved the mother’s counsel for reasons that were not
clear from the record. (Id. at p. 793.) More than two years later,
the mother filed a section 388 petition requesting the
appointment of counsel, family reunification services, and
increased visitation with the child. (Ibid.) The court set a
hearing on the mother’s section 388 petition, but did not appoint
counsel for the mother. (Id. at p. 794.) Following the hearing at
which the mother appeared in propria persona, the court
partially granted the mother’s motion, but did not grant her the
unmonitored visitation she requested. (Id. at p. 795.)
The mother appealed, asserting in part that the juvenile
court erred by failing to appoint counsel for her before the
hearing. (In re J.P., supra, 15 Cal.App.5th at p. 795.) The Court
of Appeal agreed that the court erred, noting, “‘There is nothing
vague or ambiguous about the legislative command—in the
absence of a waiver, the juvenile court must appoint an attorney
to represent an indigent parent at the detention hearing and at
all subsequent proceedings, and the attorney shall continue to
represent the parent unless relieved by the court upon the
substitution of other counsel or for cause.’” (Id. at p. 796, quoting
In re Tanya H. (1993) 17 Cal.App.4th 825, 829.) The court held
that reversal was warranted, because the “failure to appoint
counsel for mother deprived her of her due process right and
prejudicially affected the manner in which the section 388
hearing was conducted.” (In re J.P., supra, 15 Cal.App.5th at p.
800.) The court noted that the “[t]he facts concerning changed
circumstances and the benefit to [the child’s] well-being strongly
favored mother’s request for more liberal visits,” but at the
hearing, “counsel for DCFS dwelled on mother’s past conduct and
32
the reasons the juvenile court sustained the dependency petition
in the first place.” (Id. at p. 800.) The court continued, “Had the
court appointed counsel to represent mother, that attorney could
have kept the hearing focused on the matters at issue in a section
388 hearing: changed circumstances and the best interests of the
child.” (Id. at p. 801.)
Here, mother asserts that “[a] similar result is required in
the present case,” and the appointment of counsel “was critical to
protect mother’s interests.” She argues that “[a]ppointed counsel
would have been better equipped” to make mother’s arguments
and present her evidence.
DCFS contends that even assuming the court erred, any
such error was harmless. Indeed, “[t]he harmless error standard
has long applied to an appellate court’s review of the denial of a
parent’s statutory right to counsel.” (In re J.P., supra, 15
Cal.App.5th at p. 797.) Thus, a “parent must demonstrate that it
is ‘reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.’” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668, citing
People v. Watson (1956) 46 Cal.2d 818, 836.)
We agree mother has not demonstrated on appeal that a
more favorable result would have occurred had the court assigned
counsel to mother. “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.)
Here, mother could not meet this burden. Mother filed her
July 22 petition the same day the court denied a nearly identical
33
petition filed on July 8. In the petitions mother filed on July 22
and August 26, mother requested that the children be returned to
her care because the children were in danger with maternal
grandparents, and that mother was stable and healthy.
However, the record makes clear that mother’s suspicions of
abuse have never been substantiated by any source, including the
children themselves, maternal grandparents, DCFS, two
different police departments, and the children’s therapists. The
evidence showed that the children were thriving in maternal
grandparents’ care, were healthy and happy, and were doing well
in school.
In addition, mother’s insistence that she was stable and
ready to parent the children is not supported by the record.
Mother continued filing section 388 petitions based on the same
allegations, despite a lack of evidence supporting her claims and
despite the repeated denials of those petitions. Maternal
grandparents had an active restraining order against mother
when she filed her July 22 and August 26 petitions. During a
visit in September 2019, mother instructed the children to get
into her car so she could drive them to the police to report abuse.
Mother continued to insist that she never harmed the children,
demonstrating a lack of insight into how her behavior affects the
children. In short, nothing in the record supports a finding that
changed circumstances existed or that removing the children
from maternal grandparents’ guardianship or placing them in
mother’s care would be in the children’s best interest.4
4DCFS notes that in J.H. v. Superior Court (Mar. 14, 2018,
No. B285626 [nonpub. opn.], we stated that the evidence showed
that “mother has been unable to be appropriate as a parent. She
34
Mother also contends the juvenile court erred to the extent
it denied mother’s July 22 section 388 petition “on the procedural
grounds that she filed the petition[ ] in pro per.” The court stated
that it denied mother’s petition on both procedural and
substantive grounds. Thus, even assuming the court erred in
denying the petition on the procedural basis that mother filed it
in propria persona, mother has not suggested any error regarding
the court’s denial of the petition based on the petition’s
substance. Mother therefore has not demonstrated that any
error warrants reversal.
Thus, mother has not demonstrated a miscarriage of justice
as to any errors with respect to her section 388 petitions filed on
July 22 and August 26, 2019.
DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
has seriously damaged the children’s relationships with their
grandparents through accusations, paranoia, and delusions.”
DCFS argues that this constitutes “law of the case,” which “must
be followed.” This is incorrect. “The law of the case doctrine
states that when, in deciding an appeal, an appellate court ‘states
in its opinion a principle or rule of law necessary to the decision,
that principle or rule becomes the law of the case and must be
adhered to throughout its subsequent progress.’” (Kowis v.
Howard (1992) 3 Cal.4th 888, 892-893.) Our previous statement
was not a rule of law, and any findings based on facts before us in
a previous appeal do not control findings based on facts arising
later.
35
We concur:
MANELLA, P. J.
WILLHITE, J.
36