In re Aurora S. CA2/8 ( 2023 )

Filed 5/3/23 In re Aurora S. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re AURORA S. et al., Persons B314602
Coming Under the Juvenile Court (Consol. w/B320081)
Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. Nos. 19CCJP04242A–B
Plaintiff and Respondent,
v.
D.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Philip L. Soto, Judge. Appeal dismissed.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
**********
Mother D.S. (Mother), the appellant, has two children,
Aurora, a 16-year-old, and Austin, a 14-year-old, who are the
subject of this appeal. On July 3, 2019, the Los Angeles County
Department of Children and Family Services (DCFS) filed a
petition under section 300, subdivisions b(1) and (j) of the Welfare
and Institutions Code. DCFS alleged that (1) Mother had a
limited ability to care for the children as both children presented
with unique behavioral challenges, and (2) Mother left the
children without supervision. All further references to statutory
provisions will be to the Welfare and Institutions Code.
On July 5, 2019, the trial court detained the children from
Mother. On August 29, 2019, the trial court found a basis for
jurisdiction and sustained the allegation that Mother had a
limited ability to care for the children. The court ordered that
the children be removed from Mother’s care, and ordered that
Mother was to have monitored visits with the children. The trial
court also ordered that Mother was to complete reunification
services.
On February 27, 2020, at the six-month review hearing,
Mother retained private counsel and the court relieved appointed
counsel from representing Mother. The court found that Mother’s
progress regarding her reunification services had not been
substantial, and ordered that the children were to remain in
placement. On August 27, 2020, at the 12-month review hearing,
the court found that Mother was in partial compliance with her
case plan. The trial court did not return the children to Mother’s
care at the twelve-month review.
On December 4, 2020, Mother filed the first of three
Request to Change Court Order, which is also known as a “388
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motion” because the statutory basis for it is found at section 388.
In her first 388 motion, Mother sought return of the children to
her care, and the trial court set Mother’s request for a hearing.
On January 6, 2021, the trial court addressed Mother’s 388
motion together with the 18-month review hearing. The court
denied Mother’s motion, and did not return the children to
Moher’s care. With regard to the review hearing, the court
terminated Mother’s reunification services and set a hearing
under section 366.26 to select a permanent plan for the children.
On May 5, 2021, Mother filed a second section 388 motion.
Although she was represented by private counsel, Mother filed
her own motion. In her motion, Mother asked the trial court to
dismiss the petition or to offer her further reunification services.
On May 6, 2021, the trial court calendared the hearing in
Aurora’s case. The court later set the 388 hearing for Austin’s
case as well.
On July 6, 2021, the trial court heard Mother’s second 388
motion. At this hearing, Mother was again represented by
appointed counsel. The trial court denied Mother relief with
regard to Aurora and found that further visitation between
Mother and Aurora would be detrimental to Aurora. Therefore,
the court halted Mother’s visits with Aurora. With regard to
Austin, the court granted Mother some portion of her request.
The trial court ordered further visitation with Austin for Mother,
and ordered DCFS to provide Mother with new referrals for her
case plan. The trial court did not, however, reinstate Mother’s
reunification services for either child.
On March 29, 2022, Mother filed a third 388 motion which
she filed on her own behalf even though she was represented by
counsel. Mother again requested that the court terminate
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jurisdiction and alternatively requested further reunification
services. On March 30, 2022, the trial court denied Mother’s
third 388 motion without granting a hearing.
Mother appeals the trial court’s denial of her second and
third 388 motions. Mother makes four claims in her
supplemental brief: she claims that this entire case is based on a
fraud involving the maternal grandmother and the DCFS; she
argues her right to equal protection under the federal
constitution was violated; she argues that the court denied her
counsel of her choosing; and she claims the trial court allowed the
children to decide if visitation would occur.
This court presumes a trial court judgment is correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An
appellant bears the burden of establishing error. Where an
appellant does not establish an error, we may dismiss the appeal.
(In re Sade C. (1996) 13 Cal.4th 952, 994.) Unlike in a criminal
case, we have no duty to conduct an independent review of the
record. (In re Phoenix H (2009) 47 Cal.4th 835, 841–843.)
In addition, section 388, subdivision (a), provides that a
parent “may, upon grounds of change of circumstance or new
evidence, petition the court . . . for a hearing to change, modify, or
set aside any order of court previously made . . . .” For a petition
to succeed, a parent must present new evidence or circumstances
that justify modifying a court’s prior order. (In re B.D. (2008)
159 Cal.App.4th 1218, 1228.) The trial court may choose to
summarily deny the petition without a hearing if the court finds
that the petition “fails to state a change of circumstance or new
evidence that may require a change of order” or “that the
requested modification would promote the best interest of the
dependent child.” (Cal. Rules of Court, rule 5.570(d).)
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Mother has presented a detailed account of the case’s
history presenting her perspective, but her brief identifies no
arguable issues on appeal. Mother has not presented an arguable
issue that the facts at issue in this appeal were the result of a
fraud between the maternal grandmother and the DCFS. In
addition, Mother has not presented any appealable issue
regarding her rights under the federal equal protection clause.
Similarly, while Mother has changed counsel at least twice
during the case, there is no arguable issue that the trial court
improperly interfered with her choice of counsel. Last, there is no
arguable issue about whether the trial court allowed the children
to decide if visits would take place.
Finally, Mother’s appellate counsel seeks judicial notice for
the trial court’s postappeal order regarding the DCFS’s Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) investigation,
and no party has opposed the request. In the order, which is
styled as a stipulated order filed at the request of the parties, the
trial court orders that “DCFS shall interview/attempt to
interview all family members about whether there is any
American Indian ancestry in the family” and make appropriate
reports to the court. While this trial court order does not relate
to any issues that Mother identified in her supplemental brief, it
is relevant to appellate counsel’s determination that there are no
arguable issues on appeal, and we grant the request for this
limited purpose. (In re M.F. (2022) 74 Cal.App.5th 86,
110, review denied Apr. 27, 2022, S273387 [judicial notice is
appropriate for postappeal court orders when relevant to
mootness determinations].)
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DISPOSITION
We dismiss the appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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