In re Ma.M. CA2/6 ( 2024 )

Filed 9/18/24 In re Ma.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ma.M. et al., Persons 2d Juv. No. B338284
Coming Under the Juvenile Cons. w/B338287
Court Law. (Super. Ct. Nos. 22JV00200,
_____________________________ 22JV00201)
(Santa Barbara County)
M.H. et al.,
Petitioners,
v.
SUPERIOR COURT OF
CALIFORNIA, COUNTY OF
SANTA BARBARA,
Respondent,
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Real Party in Interest.
Five months after the juvenile court terminated parental
rights over Ma.M. (born in January 2020) and Mi.M. (born in
February 2022) (the children), M.H. (paternal grandmother) and
C.O. (paternal aunt) (petitioners) separately petitioned the
juvenile court to modify the dependency orders under Welfare
and Institution Code section 3881, seeking to remove the children
from their non-related prospective adoptive parents and place the
children with them. The juvenile court denied both petitions
without an evidentiary hearing, finding neither petitioner made a
prima facie showing of new evidence or change of circumstances,
or how the requested order would serve the children’s best
interests. Petitioners now seek extraordinary writ relief (Cal.
Rules of Court, rule 8.4562; §§ 366.26, subd. (l), 366.28, subd.
(b)(1)), asserting the juvenile court erred in violation of their
constitutional due process rights and they are entitled to
evidentiary hearings. They also seek a stay in the trial court
proceedings pending this court’s decision on the writ.
We conclude there was no error. We denied the request for
a stay of the proceedings in a separate order. We will deny the
writ petitions.
FACTUAL AND PROCEDURAL BACKGROUND3
This case has been ongoing since July 2022 when the
juvenile court found true allegations of child abuse and ordered
1 Unless otherwise indicated, all statutory references are to
the Welfare and Institutions Code.
2 Further rule references are to the California Rules of
Court.
3 The record on appeal is limited. It does not include a
clerk’s or reporter’s transcript of events occurring before
2
the children removed from their father and placed with their
mother in family maintenance. In late December 2022 further
allegations of abuse and neglect resulted in the children being
detained from both parents and placed with a non-related
resource family.
Petitioners share a home. When the children were initially
detained, each requested placement. Their placement requests
were assessed pursuant to section 361.3 and placement was
denied. A social worker informed them they would not get
placement of the children “because they ‘know’ [father] was living
with me,” “they were not going to risk the kids being injured” and
petitioners were “not capable of protecting” the children. The
juvenile court was concerned father lived in their home contrary
to the court’s orders and without Child Welfare Services’ (CWS)
knowledge.
The children were placed with their current resource family
in February 2023. In March 2023 petitioners’ home was
approved as a resource family home. Grandmother filed a
request to be designated the children’s de facto parent. Her
request was denied. Parental rights were thereafter terminated.
In February 2024, grandmother and aunt petitioned under
section 388 for placement of the children. In May the juvenile
court heard argument on the sufficiency of the 388 petitions. The
court found no prima facie showing of “new evidence or a change
in circumstance that warrant a hearing or that the proposed
order would result in the best interest of the children . . .” and
denied the petitions. A post-permanency hearing pursuant to
February 21, 2024, the date petitioners filed their 388 petitions.
We thus are hampered in our ability to know all the facts upon
which the juvenile court may have relied in denying the petitions.
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section 366.3 was set for September 5. Petitioners filed timely
Notices of Intent to File Writ Petitions. We treat the notices of
intent to file a writ petition filed on May 10, 2024, by
[grandmother and aunt], as timely notices of appeal. (In re K.C.
(2011) 52 Cal.4th 231, 235-236; In re Daniel C. (2006) 141
Cal.App.4th 1438, 1443-1445 [orders denying section 388
petitions are not reviewable by way of a writ petition under
section 366.28]; see also § 395, subd. (a)(1) [Any subsequent order
after judgment in a proceeding under section 300 may be
appealed as an order after judgment].)
We consolidated their separate writ petitions for oral
argument and decision and denied a request to stay the juvenile
court proceedings.4
DISCUSSION
Petitioners assert the juvenile court’s denial of their 388
petitions without evidentiary hearings was improper because
they made a prima facie showing of new evidence, changed
circumstances, and best interests of the children. We disagree
and conclude the order summarily denying both 388 petitions
was correct.
Under section 388, any parent or interested person may
petition for a hearing to change or modify a juvenile court order
by factually alleging: 1) changed circumstances or new evidence
justifies the requested order, and 2) the requested order is in the
child’s best interests. (§ 388, subds. (a)(1) & (b).) Only a prima
facie showing is needed to trigger the right to an evidentiary
hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A petition
does not meet the prima facie standard unless the facts alleged in
4 See Order dated August 8, 2024.
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the petition, once supported by relevant evidence, would support
a favorable decision on the petition. (In re J.P. (2014) 229
Cal.App.4th 108, 127.) In considering whether petitioner has
made the requisite showing, the juvenile court may consider the
entire factual and procedural history of the case. (In re Justice P.
(2004) 123 Cal.App.4th 181, 188-189.)
“A ruling on a section 388 petition is ‘committed to the
sound discretion of the juvenile court, and the trial court’s ruling
should not be disturbed on appeal unless an abuse of discretion is
clearly established. [Citations.]’ Thus, we may not reverse
unless the juvenile court exceeded the bounds of reason . . . .” (In
re D.B. (2013) 217 Cal.App.4th 1080, 1088-1089.)
Petitioners assert their 388 petitions met the prima facie
requirements for an evidentiary hearing by demonstrating “both
changed circumstances and new evidence in several distinct
categories,” including evidence of CWS’ communication failures,
misinformation provided by social workers, their Resource
Family Approval Certificate, a psychological consultation, and
the placement of two foster children in their home.
“[T]he term ‘new evidence’ in section 388 means material
evidence that, with due diligence, the party could not have
presented at the dependency proceeding at which the order,
sought to be modified or set aside, was entered.” (In re H.S.
(2010) 188 Cal.App.4th 103, 105.) The new evidence or a change
in circumstances must be so significant it requires modifying the
order. (In re D.B., supra, 217 Cal.App.4th at p. 1093.) And it
must be material. (In re N.F. (2021) 68 Cal.App.5th 112, 121.)
“Not every change in circumstance can justify modification of a
prior order.” (In re S.R. (2009) 173 Cal.App.4th 864, 870.)
5
Here, petitioners sought to modify the order placing the
children in a non-relative foster home. There appears to have
been two placement orders, the last made in February 2023.
Petitioners’ respective declarations filed to support their requests
allege the following new evidence: the psychological consultation;
the March 2, 2023 resource family approval; two non-related
dependent children had been placed in their home; and
petitioners had begun attending monthly visits with the children
in April 2023. Grandmother also stated “I have separated myself
from my son, . . . because I understand that he has made poor
decisions.”
The resource family approval and placement of two foster
children are not facts material to the reasons why placement was
denied initially. Visitation is also not material. There is no
indication CWS or the court doubted petitioners’ prior
relationship or desire to see the children. Grandmother’s
separation from her son is material and does support a prima
facie case. Inexplicably the aunt does not make a similar
statement.
The psychological consultation is not new evidence because
it was based on the psychologist’s review of documents that had
been or could have been presented during earlier dependency
proceedings. “[T]he belated opinion of an expert based on
evidence previously known at the time of trial is not ‘new
evidence’ within the meaning of section 388.” (In re H.S., supra,
188 Cal.App.4th at p. 109.)
Even if some facts or evidence petitioners’ allege are new or
establish changed circumstances, there is no prima facie showing
that changing the children’s placement would be in their best
interests. “While the petition must be liberally construed in favor
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of its sufficiency [citations], the allegations must nonetheless
describe specifically how the petition will advance the child’s best
interests.” (In re G.B (2014) 227 Cal.App.4th 1147, 1157.)
Petitioners assert their expert psychologist consultation “more
than meet[s]” the required showing of best interests and that
their petition precisely describes how the orders they request are
in the children’s best interests. They support this by quoting the
psychologist: “[Petitioners] argue the children are bonded with
them, and as a result of this bonding and of the family
connections, it is in the best interest of the children to be placed
in their custody.” But they omit the psychologist’s very next
sentence: “It is beyond the scope of this consultation to offer an
opinion as to what is in the best interest of [the children], as
there is information not available to this consultant that will be
important in making this determination.”
Petitioners assert the juvenile court “never addressed the
best interest factors articulated by [petitioners’] counsel.” It had
no best interest factors to address because none were articulated.
In assessing the best interests of the child, “a primary
consideration . . . is the goal of assuring stability and continuity.”
(In re Stephanie M. (1994) 7 Cal.4th 295, 317) Petitioners’
psychologist expressly said it is “beyond the scope” to offer an
opinion as to the children’s best interests. This evidence fails to
demonstrate how modifying the placement orders would assure
stability and continuity for the children. The juvenile court,
relying on information in its file, stated it did not intend to
“relitigate the placement issue” when “[t]he children are doing
very, very well in [their] current placement.”
There is no showing the court abused its discretion. The
juvenile court properly concluded petitioners failed to make a
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prima facie showing of new evidence or sufficiently changed
circumstances and how undoing the prior orders would be in the
children’s best interests. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529.)
DISPOSITION
The petition for extraordinary writ relief is denied.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Honorable Gustavo Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
California Guardianship Lawyers, Jomo K. Stewart, for
Petitioners, M.H. and C.O.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Senior Deputy County Counsel, for Real Party in Interest Santa
Barbara County Department of Social Services.
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