In re Ah. V. CA2/2

Filed 4/4/23 In re Ah. V. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re AH. V. et al., Persons B318191
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 17CCJP00988C-G)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHAEL V.
Defendant;
S. JOHNS-EL,
Intervener and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Affirmed.
Christopher Blake, under appointment by the Court of
Appeal, for Intervener and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
******
Appellant Chiefhead S. Johns-El (appellant) challenges the
orders summarily denying his petitions under Welfare and
Institutions Code section 388 requesting legal guardianship over
the subject children, Ah. (born 2013), Asa. (born 2014), twins Am.
and Asi. (born 2016), and Mi. (born 2019), and seeking leave to
participate in the children’s dependency proceedings.1 We find no
abuse of discretion and affirm.
BACKGROUND
Prior appeal
This court previously affirmed orders that established
dependency jurisdiction over Michael (born 2019), removed him
from parental custody, and continued out-of-home placement of
Ah., Asa., Am. and Asi. (In re Ahnyia V. (May 13, 2020, B298852)
[nonpub. opn].) The sole issue raised in the prior appeal was
whether the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) complied
with the inquiry and notice requirements of the Indian Child
1 All further unattributed statutory references are to the
Welfare and Institutions Code.
2
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law.
The children’s mother initially reported possible Cherokee
ancestry. The children’s father identified throughout the case an
ever-expanding list of Indian tribes in which the children may
have existing or future membership, including Apache, Cherokee,
Blackfeet, Nanticoke, Lenni-Lenape, Califa Indian, Siksika,
Chumash, and the El/Bey clan. DCFS investigated the parents’
claims of possible Indian ancestry and notified the federally
recognized tribes. After receiving the tribes’ responses, the
juvenile court found there was no reason to believe the children
were Indian. We affirmed the juvenile court’s ICWA findings
based on substantial evidence and held that both the juvenile
court and DCFS had complied with ICWA’s inquiry and notice
requirements.
Current appeal
Appellant filed identical section 388 petitions for all five
children on September 13, 2021. Appellant identifies himself as
“Chiefhead S. Johns-El” and the “Tribal Chief/Designated Indian
Custodian” of the “Moorish Americans of California.”
Appellant sought to change an “[o]rder of adoption by non-
Indian family as the permanent plan” purportedly made on
December 14, 2020.2 As to the circumstances that changed since
the December 14, 2020 order, appellant states: “A Faithful
member of the Indian child’s extended family is committed to
2 The record on appeal does not contain the juvenile court’s
December 14, 2020 order. Appellant’s counsel on appeal states
that no section 366.26 permanency planning hearing was held in
December 2020 and that counsel is uncertain as to when or
whether such a hearing was held.
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providing the children with permanency via legal guardianship.
An approved designated Indian Custodian will ensure the
children’s well-being, education, and safety.” Appellant seeks a
new order directing the children’s social worker to evaluate for
legal guardianship “extended family members of the tribe,”
including appellant. The petitions also request leave for the tribe
to participate in the children’s dependency proceedings.
Appellant lists the following reasons why the requested
orders would benefit the children: “To prevent the Indian
children from developing mental health disorders, loss of identity,
deprivation of Nationality, loss o[f] religion, and other serious
health and existential dangers that may arise if the children are
adopted by a non-Indian family. See also attached Declaration
and Order of Tribal Council.”
Appellant attached several documents to the petitions,
including his own declaration. In that declaration, appellant
identifies himself as an extended family member and the
children’s Indian custodian. Appellant identifies his tribe as the
Moorish Temple of Science or the Moorish Americans of
California and claims that the tribe “shares the same ancestral
ties with the Lanape/Delawares.” Appellant disavows any
affiliation between his tribe and the Blackfeet, Siksika, Cherokee,
and Apache tribes and with the “El/Bey clan.”
Also attached to appellant’s petitions is an undated “Indian
Child Power of Attorney Form” signed by father and purporting
to give appellant the right to make educational decisions for the
children and to provide for their “food, clothing, shelter, and
everyday care.” An unsigned affidavit by father states that before
and after the children were detained, he regularly took them to
the Moorish Science Temple, where they were excited to meet
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members of their Religious Tribal Society and to wear Moorish
cultural attire. A document captioned “Order of the Tribal
Council” purports to place the children “into the custody of the
designated Indian Custodian.” The constitution and by-laws of
the Moorish Science Temple of America, identification cards for
the children, Delaware State Government code provisions
recognizing the Nanticoke Indian Tribe of Delaware as an
American Indian tribe, a resolution by the House of
Representatives of the State of Illinois designating the week of
January 8-15, 2012, as Moorish American Week in the State of
Illinois, and literature concerning the placement of Indian
children are also attached to the petitions.
A hearing pursuant to section 366.26 had been set for
September 14, 2021. The juvenile court’s minute order from that
date states: “Father’s counsel is heard as to the 388 petition filed
by Father’s tribe. The Court finds the 388 has not been filed
according to proper procedure, and defers a ruling at this time.”
On October 14, 2021, the juvenile court summarily denied
appellant’s section 388 petitions on the grounds that the request
stated no new evidence or change of circumstances, and the
proposed change of order did not promote the children’s best
interests. The juvenile court’s orders denying the petitions
further stated: “The 388 petition has failed to demonstrate a
prima facie showing therefore no hearing will be set.”
This appeal followed.
DISCUSSION
I. Applicable law and standard of review
Section 388 provides in pertinent part: “(a)(1) Any parent or
other person having an interest in a child who is a dependent
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child of the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child of the
juvenile court or in which a guardianship was ordered pursuant
to Section 360 for a hearing to change, modify, or set aside any
order of court previously made or to terminate the jurisdiction of
the court. The petition . . . shall set forth in concise language any
change of circumstance or new evidence that is alleged to require
the change of order or termination of jurisdiction. [¶] . . . [¶] (d) If
it appears that the best interests of the child . . . may be
promoted by the proposed change of order . . . , the court shall
order that a hearing be held . . . .”
Although section 388 does not explicitly so provide, courts
have long held that the right to a hearing is triggered only if the
petition makes a prima facie showing, consisting of facts
demonstrating a genuine change of circumstances. (In re C.J.W.
(2007) 157 Cal.App.4th 1075, 1079.) To require a hearing a
parent or interested person must show changed circumstances.
(See In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on
another ground in In re Caden C. (2021) 11 Cal.5th 614, 636,
fn. 5.) In addition, the petitioner must present new evidence and
facts showing that the requested modification will promote the
child’s best interests. (C.J.W., supra, at p. 1079.) The petition
must state facts that, if found to be true, would sustain a
favorable decision. (In re Anthony W. (2001) 87 Cal.App.4th 246,
250.)
California Rules of Court, rule 5.570(d) expressly provides
that the juvenile court may deny a section 388 petition ex parte if
the petition “fails to state a change of circumstance or new
evidence that may require a change of order . . . or fails to show
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that the requested modification would promote the best interest
of the child . . . .”
We review the summary denial of a hearing on a section
388 petition for abuse of discretion. (In re A.S. (2009) 180
Cal.App.4th 351, 358.) Under that standard, we will not disturb
the decision of the juvenile court unless it was arbitrary,
capricious, or patently absurd. (Ibid.)
II. No abuse of discretion
The trial court did not abuse its discretion by summarily
denying appellant’s section 388 petitions. First, appellant failed
to make a prima facie showing of changed circumstances. The
willingness of an unidentified member of the children’s purported
“extended family” to be considered for legal guardianship or the
willingness of an unidentified “approved designated Indian
Custodian” to “ensure the children’s well-being, education, and
safety” do not demonstrate changed circumstances.
Second, appellant failed to show that the change of order
would be in the children’s best interests. He offered no support
for the assertion that the change would prevent the children from
developing mental health disorders or losing their religion.
Additionally, appellant’s unsigned declaration and the order of
appellant’s tribal council assert, without any factual or
evidentiary support, that placing the children with unidentified
tribal members of the Moorish Americans of California will
benefit the children.
A section 388 petition must include “specific allegations
describing the evidence constituting the proffered changed
circumstances or new evidence is required.” (In re Anthony W.,
supra, 87 Cal.App.4th at p. 250.) While the petition “must be
liberally construed in favor of its sufficiency [citations], the
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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.) Appellant’s petitions fail to meet
these requirements.
Appellant cited Twenty-Nine Palms Enterprises
Corporation v. Bardos (2012) 210 Cal.App.4th 1435 and Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255 (Nazir), but
neither case supports his position. These cases do not concern the
summary denial of a section 388 petition; instead, both involved a
trial court summarily ruling on multiple evidentiary objections in
a civil case. The blanket evidentiary rulings contained no
indication that the trial court had reviewed and considered each
objection individually. The appellate courts in both cases found
that some of the evidentiary objections were not properly
sustained and that the blanket orders doing so constituted a
manifest abuse of discretion. (Twenty-Nine Palms, at pp. 1447-
1449; Nazir, at pp. 255-257.) No such abuse of discretion is
manifested here.
Appellant failed to make a prima facie showing of changed
circumstances or that a change of order would be in the children’s
best interests. The juvenile court, therefore, did not err by
summarily denying appellant’s section 388 petitions.
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DISPOSITION
The orders denying the section 388 petitions are affirmed.
NOT TO BE PUBLISHED.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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