In re G.F. CA2/6

Filed 1/20/23 In re G.F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115 .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 G.F., A Person Coming Under 2d Juv. No. B321178
the Juvenile Court Law. (Super. Ct. No. 19JD-00392
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
A.W. (Mother) appeals an order of the juvenile court
denying her Welfare and Institutions Code section 388
modification petition regarding visitation with her minor
daughter, G.F.1 We conclude that the court did not abuse its
discretion by summarily denying the petition because Mother did
not present new evidence or a change of circumstances regarding
the court’s previous finding of detriment to G.F. by visitation
with Mother. We affirm.
This appeal concerns Mother’s post-permanency planning
petition to modify the juvenile court’s previous finding of
detriment precluding visitation with her daughter. Following
nine months of no contact, Mother sought to resume a
relationship with her daughter, now approaching adulthood and
not desiring a relationship with Mother.
FACTUAL AND PROCEDURAL HISTORY
Mother is a parent to G.F., her older sister, and her
younger brother. In 2016, Mother left the children in the care of
their father, R.F. (Father). Father was later incarcerated in
prison serving a three-year sentence. The family law court then
issued an order placing G.F. in the care of her paternal uncle and
his wife as potential guardians.
In November 2019, G.F. reported that her uncle had been
sexually molesting her for nearly a year. On November 22, 2019,
the San Luis Obispo County Department of Social Services (DSS)
filed a dependency petition pursuant to section 300, subdivisions
(b), (d), and (g). The petition alleged that Mother was homeless,
had mental health issues, and had not protected G.F. from her
uncle’s sexual abuse. The petition also alleged that Father was
incarcerated and would remain so until October 2020. At the
time of the filing of the petition, G.F.’s two siblings were subjects
of dependency proceedings; family reunification services
1 All statutory references are to the Welfare and
Institutions Code.
2
regarding those children were terminated due to the parents’ lack
of participation.
On November 25, 2019, the juvenile court ordered that G.F.
be detained. Among other things, the court ordered weekly
supervised visits for Mother with discretion to DSS to increase
visitation and allow unsupervised visits.
DSS filed jurisdiction and disposition reports for the March
25, 2020, combined jurisdiction and disposition hearing. DSS
recommended that family reunification services be bypassed to
Mother and Father pursuant to section 361.5, subdivision (b)(10),
and that the juvenile court set a permanent plan hearing
regarding G.F. DSS reported that Father was incarcerated for a
parole violation. Mother also had been sentenced to county jail
for driving a car without consent. DSS stated that Mother
informed it that she had already engaged in many years of
counseling and did not require additional services.
The juvenile court sustained the allegations of the
dependency petition and declared G.F. a dependent of the court.
The court also bypassed family reunification services for the
parents and set the matter for a permanent plan hearing
pursuant to section 366.26. The court ordered monthly
supervised visitation to Mother with discretion to DSS to increase
visitation and allow unsupervised visits. It also vacated the
family law court order granting custody of G.F. to her uncle and
his wife.
On July 22, 2020, the juvenile court held a permanent plan
hearing. Mother waived her appearance and submitted on the
DSS report. G.F. was then living with a non-related extended
family and thriving. DSS reported that G.F. and Mother had
frequent contact but that their relationship was strained. DSS
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recommended that G.F. remain in the present planned
permanent living arrangement while it examined adoption and
guardianship alternatives.
On January 20, 2021, the juvenile court held a post-
permanency planning hearing. DSS reported that G.F. and
Mother visited frequently and that Mother had completed parent
education classes and a drug and alcohol assessment. Mother
had requested reinstatement of family reunification services, a
request that DSS was considering. DSS recommended that
Mother continue with the drug and alcohol services. At the
hearing, DSS informed the court that it would support family
reunification services after Mother engaged in mental health
counseling and drug and alcohol services. The court permitted
Mother unsupervised visitation and set a second post-
permanency planning hearing for July 2021.
In its report for the second post-permanency planning
hearing, DSS recommended that G.F. remain a dependent. DSS
reported that Mother was then homeless and had not provided
information regarding her counseling or drug and alcohol
services. G.F. informed DSS that she feared Mother’s mood
swings and that Mother had been stalking her. G.F. requested a
no-contact order regarding Mother.
At the second post-permanency planning hearing, G.F. and
Mother were present with their respective attorneys. Mother
stated that she did not oppose G.F.’s no-contact request. The
juvenile court continued the hearing to consider G.F.’s request.
At the August 4, 2021, hearing, the court granted the request
after finding that contact with Mother would be detrimental to
G.F.’s best interests.
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The juvenile court held a third post-permanency planning
hearing on February 2, 2022. The court later granted G.F.’s
modification petition seeking to transfer her educational rights to
her court-appointed special advocate. DSS had filed a status
report recommending that G.F. remain a dependent child. DSS
reported that Mother had contacted it only once, by a brief
telephone call. DSS expressed no opposition to G.F.’s request for
transfer of her educational rights.
Mother’s May 2022 Modification Petition
On May 17, 2022, Mother filed a section 388 modification
petition, requesting court-ordered supervised phone calls or video
chats with DSS discretion to evolve to unsupervised in-person
visits. Mother also requested court-ordered family therapy
between herself and G.F., noting that G.F. was soon attaining
majority. Mother stated that she had secured housing and was
employed as a respite worker with autistic children. The juvenile
court denied the petition without a hearing, stating that Mother
did not state new evidence or a change of circumstances and
failed to show the proposed modification would promote G.F.’s
best interests.
Mother appeals and contends that the juvenile court erred
by denying her modification petition without an evidentiary
hearing. Father is not a party to the appeal.
DISCUSSION
Mother argues that she established changed circumstances
and that resumption of modest visitation would promote G.F.’s
best interests. Mother points out that she obtained housing and
employment and had observed the no-contact order following its
issuance. She relies upon In re J.M. (2020) 50 Cal.App.5th 833[juvenile court erred by denying modification petition concerning
5
infant where mother reformed, evidentiary hearing occurred, and
infant’s counsel joined in the petition] and Serena M. v. Superior
Court (2020) 52 Cal.App.5th 659 [visitation is the most critical
component of reunification services plan].
A petition to change or modify a juvenile court order
pursuant to section 388 must factually allege that 1) there are
changed circumstances or new evidence to justify the requested
order, and 2) the requested order would serve the minor’s best
interests. (§ 388, subds. (a) & (c).) The petitioner bears the
burden of proof on each issue by a preponderance of evidence. (In
re Casey D. (1999) 70 Cal.App.4th 38, 48, overruled on other
grounds by In re Caden C. (2021) 11 Cal.5th 614. 636, fn. 5.) The
change of circumstances supporting the request must be
material. (In re N.F. (2021) 68 Cal.App.5th 112, 120-121.)
The juvenile court must liberally construe the petition in
favor of sufficiency. (Cal. Rules of Court, rule 5.570(a); In re
Marilyn H. (1993) 5 Cal.4th 295, 309-310.) Nonetheless, if the
juvenile court finds that even so construed the petition fails to
make a prima facie case as to either or both tests under section
388, the court may deny the petition without an evidentiary
hearing. (In re Daniel F. (2021) 64 Cal.App.5th 701, 711.) In
determining whether a petitioner has established a prima facie
showing, we may consider the entire factual and procedural
history of the case. (Ibid.) We review the denial of a section 388
petition for an abuse of discretion. (Ibid.)
The juvenile court did not abuse its discretion by
summarily denying Mother’s modification petition. Mother’s
alleged changed circumstances failed to explain the cessation or
amelioration of her mood swings or stalking behaviors and how
G.F. would benefit from visitation with her. G.F. had requested
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the no-contact order with the support of her therapist after she
(G.F.) refused contact with Mother for several months. G.F. had
stated that she did not feel safe with Mother due to Mother’s
mental health issues. It is laudable that Mother has obtained
housing and employment, but those changes are not material to
G.F.’s safety concerns regarding her relationship with Mother.
Unlike the circumstances in In re J.M., supra, 50
Cal.App.5th 833, G.F. is a now 17-year-old girl advocating for
herself regarding a no-contact order with Mother. At the time of
the most recent status report, DSS reported that G.F. still did not
desire contact with Mother. In re J.M. concerned a mother’s
commendable reformation following termination of reunification
services and the failure to reunify with her infant.
Serena M. v. Superior Court, supra, 52 Cal.App.5th 659,
concerned a mother’s appeal from the juvenile court’s order
terminating reunification services. There, the mother had no
visitation during all 18 months of the dependency. On appeal,
the reviewing court stated that visitation was the most critical
component of a reunification services plan, but that the court
could deny visitation where forced contact was harmful to the
child. (Id. at p. 673.) Here, the court ordered the bypass of
reunification services to Mother and Father. Moreover, Mother
had supervised visits or the right thereto with G.F. for nearly two
years of the dependency.
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DISPOSITION
The order denying Mother’s modification petition is
affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
BALTODANO, J.
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Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rita L. Neal, County Counsel, Ann C. Duggan, Deputy, for
Plaintiff and Respondent.