In re S.S. CA2/5 ( 2024 )

Filed 10/25/24 In re S.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
In re S.S., A Person Coming B332819
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 18CCJP02932A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
G.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Lillian Hamrick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
G.S. (father) appeals the juvenile court’s summary denial of
his petition to modify its order under Welfare and Institutions
Code section 3881 and the juvenile court’s visitation order that
failed to specify any minimum frequency or duration for father’s
visits with his daughter S.S. (born 2012). We affirm the
summary denial of father’s section 388 petition, but reverse the
visitation order and remand for the juvenile court to provide a
more certain one.
The parties are familiar with the facts and we resolve this
appeal by memorandum opinion consistent with constitutional
principles. (Cal. Const., art. VI, § 14 [“Decisions of the . . . courts
of appeal that determine causes shall be in writing with the
reasons stated”]; Lewis v. Superior Court (1999) 19 Cal.4th 1232,
1263.)
DISCUSSION
I. Summary Denial of Section 388 Petition
Father contends the juvenile court erred in denying his
petition without holding an evidentiary hearing. We review a
summary denial of a section 388 petition for abuse of discretion.
(In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.).)
A. Mootness
As a preliminary matter, we reject the Los Angeles
Department of Children and Family Services (Department’s)
contention that father’s challenge to the juvenile court’s summary
denial of his section 388 petition is moot. The Department is
incorrect that no effective relief can be granted. The juvenile
court retained jurisdiction when it appointed S.S.’s legal
1 All further statutory references are to the Welfare and
Institutions Code.
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guardian, and its order may still be set aside or modified under
section 388. (B.B. v. Superior Court (2016) 6 Cal.App.5th 563,
569; In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1215-1216
[legal guardianship “is not irrevocable,” and “nothing precludes a
parent whose parental rights have not been terminated from
seeking to regain custody of their dependent minors. Indeed, the
dependency scheme provides for such a result in the case of a
legitimate change of circumstances”].)
B. Section 388
Under section 388, a parent may petition to modify a
juvenile court’s order “upon grounds of change of circumstance or
new evidence.” (§ 388, subd. (a)(1).) Such a petition must allege
facts showing (1) changed circumstances or new evidence to
justify the requested order, and (2) that the requested order
would serve the minors’ best interests. (In re Daijah T. (2000) 83
Cal.App.4th 666, 672.) The parent must make a prima facie
showing as to both elements before the juvenile court is required
to hold an evidentiary hearing on the petition. (In re Samuel A.
(2020) 55 Cal.App.5th 1, 7 (Samuel A.).)
Although a section 388 petition must be construed liberally
in favor of sufficiency, a juvenile court may deny the petition
without a hearing if it finds the petition fails to make a prima
facie case as to either or both tests under section 388. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188-189.) A prima facie
showing is not made “unless the facts alleged, if supported by
evidence given credit at the hearing, would sustain a favorable
decision on the petition.” (In re J.P. (2014) 229 Cal.App.4th 108,
127.)
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C. No abuse of discretion in the summary denial
Father’s section 388 petition did not state a prima facie
case requiring the juvenile court to hold an evidentiary hearing.
He alleged he had been released from prison and was searching
for housing and provided a declaration to that effect. Assuming
this constituted a change in circumstance for purposes of section
388, father nonetheless failed to state a prima facie case for why
the proposed modification—placing S.S. with him, or ordering
reunification services with the hope that S.S. could be placed
with him in the future—would be in S.S.’s best interests. The
child’s best interests “are not to further delay permanency and
stability in favor of rewarding” the parent for his “hard work and
efforts to reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527;
accord Angel B., supra, 97 Cal.App.4th at pp. 464-465 [even
though mother was doing well in remaining sober, completing
classes, obtaining employment, and visiting regularly, she failed
to state prima facie case that granting her section 388 petition
was in best interest of child removed from her care at birth].)
Father’s petition failed to “describe specifically how the
petition will advance the child’s best interests.” (In re G.B. (2014)
227 Cal.App.4th 1147, 1157.) Although father alleged “there is
no one willing to provide a permanent plan for [S.S.]” aside from
father, the record in fact showed the court-appointed legal
guardian, who had cared for S.S. since 2021, was willing and able
to continue in that role. (See Samuel A., supra, 55 Cal.App.5th at
p. 7; In re Alayah J. (2017) 9 Cal.App.5th 469, 478 [“the
allegations of the petition must be specific regarding the evidence
to be presented and must not be conclusory”].) Guardianship is a
permanent plan when adoption, the statutorily preferred option,
is not appropriate. (In re M.V. (2023) 87 Cal.App.5th 1155, 1186.)
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The trial court was justified in determining that adoption was not
appropriate here, as the caretaker’s refusal to adopt S.S. was not
due to her unwillingness to care for her, but rather her desire for
continued services and support from the court and the social
worker in navigating S.S.’s severe behavioral and mental health
challenges.2
Even assuming father showed a change in circumstances,
the court was well within its discretion in finding his conclusory
allegations insufficient to demonstrate reunification services
would be in S.S.’s best interest. Father had only met S.S. once in
person in 2014 (when S.S. was two years old), and had not found
stable housing since release from his lengthy incarceration.
(See Samuel A., supra, 55 Cal.App.5th at p. 7 [when determining
whether parent made prima facie showing, “ ‘the court may
consider the entire factual and procedural history of the case’ ”];
Angel B., supra, 97 Cal.App.4th at p. 463 [parent failed to make
prima facie showing where she pointed to no evidence she “was
ready to assume custody . . . or provide suitable care,” or “that
she had a housing situation suitable” for the child].)
The record indicates the trial court’s careful consideration
of S.S.’s history, in particular her profound and ongoing mental
health and behavioral challenges stemming from a deeply
traumatic early childhood. S.S. suffered extensive physical abuse
at the hands of her mother and other adults from the time she
was a small child, and her inclinations toward aggressive
behaviors and self-harm have resulted in multiple
hospitalizations. S.S. consistently reported her desire to stay
with the caregiver appointed as her legal guardian, who S.S.
2 S.S.’s tantrums last “between an hour and four hours.”
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referred to as “mom.” S.S. “was triggered and started to act out”
after calls from father. On this record, the trial court’s summary
denial of the section 388 petition was not an abuse of discretion.
II. The Juvenile Court Erred in Failing to Specify the
Frequency and Duration of Father’s Visits in its
Visitation Order
Father argues that the juvenile court erred in failing to
specify the frequency and duration of father’s visits. We review
visitation orders in dependency cases for abuse of discretion.
(In re J.P. (2019) 37 Cal.App.5th 1111, 1119; In re Rebecca S.
(2010) 181 Cal.App.4th 1310, 1313-1314 (Rebecca S.).)
Although we agree with the Department that father
forfeited this argument by failing to object to the visitation order
in the juvenile court, we exercise our discretion to consider the
merits of father’s argument. (In re S.B. (2004) 32 Cal.4th 1287,
1293.)
The juvenile court exceeded its discretion when it ordered
“monitored phone calls” for father without specifying a minimum
frequency or duration of those calls, leaving it entirely within the
legal guardian’s discretion. (See Rebecca S., supra, 181
Cal.App.4th at p. 1314 [“The time, place, and manner of
visitation may be left to the legal guardian, but leaving the
frequency and duration of visits within the legal guardian’s
discretion allows the guardian to decide whether visitation will
actually occur”]; In re M.R. (2005) 132 Cal.App.4th 269, 274 [trial
court may “not delegate authority to the legal guardian to decide
whether visitation would occur”].)
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DISPOSITION
The order summarily denying father’s section 388 petition
is affirmed. The portion of the order regarding visitation is
reversed, and the matter is remanded to the juvenile court with
directions to specify the frequency and duration of father’s visits.
DAVIS, J.*
WE CONCUR:
MOOR, Acting P. J.
KIM, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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