California Court of Appeal Mar 27, 2023 No. E079900Unpublished
Filed 3/27/23 In re J.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.J., a Person Coming Under the Juvenile Court Law. E079900 SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, (Super.Ct.No. J289592)
Plaintiff and Respondent, OPINION
v.
N.R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Tiffany Lok, Deputy County Counsel, for
Plaintiff and Respondent.
1
N.R. (Mother) filed a petition under Welfare and Institutions Code1 section 388
asking the juvenile court either to return her daughter, J.J., to her custody with family
maintenance services or to order reunification services for her. The juvenile court
summarily denied the petition and subsequently terminated parental rights at the
section 366.26 hearing. Mother appeals from the order denying her section 388 petition
and the order terminating her parental rights. We affirm.
In 2008, San Bernardino County Children and Family Services (Department)
investigated a referral that Mother was exhibiting impulsive and angry behaviors in the
hospital before and after giving birth to J.J.’s older half sibling. It was reported that
Mother had a learning disability with poor coping skills, had been living an itinerant
lifestyle moving from place to place, had few provisions for the baby, and no definite
home to go to upon discharge from the hospital. Mother agreed to a plan of voluntary
family maintenance services under Department supervision. Mother was resistant with
infant health workers, failed to follow up on a referral to obtain services from the Inland
Regional Center, and did not comply with medical staff’s instructions on how to care for
the baby. Mother failed to follow feeding instructions, mixing twice the amount of infant
formula, making the mixture too thick and creating a choking hazard . Mother continued
to allow the baby to sleep on its stomach, putting him at risk of sudden infant death
1 All further statutory references are to the Welfare and Institutions Code.
2
syndrome, after being advised not to. The child was removed from Mother’s custody in
2008, reunification services were terminated, and Mother’s parental rights were
terminated in 2009.
In 2004, while the Department was investigating allegations that Mother was
unable to care for her first child and had covered the baby with a pillow during feeding,
Mother made arrangements for that child to reside with relatives who were subsequently
granted legal guardianship. In 2010, Mother’s third child was removed from her care at
birth and placed with the same relatives because Mother was incarcerated. Both of those
children were removed from the relatives’ custody, and Mother’s parental rights were
terminated as to them in 2011.
B. DETENTION
The present case began in May 2021. When J.J. was three days old, the
Department received a referral alleging general neglect. She was born prematurely and
weighed only three pounds six ounces, requiring respiratory support in the neonatal
intensive care unit. The reporting party informed the Department that Mother has
“childlike” behavior and communication issues. Mother herself reported that she has a
learning disability. It was also reported that J.J. (Father)2 was very aggressive and
controlling, yelling at Mother, using profanity, and preventing Mother from speaking for
herself. The reporting party expressed concern that Mother would be unable to care for
J.J. given her reported history with her previous children, her lack of a support system,
2 Father is not a party to this appeal.
3
and the fact that she would frequently be left alone with J.J. because Father went to Los
Angeles to work for several days at a time.
To investigate Mother’s ability to care for J.J. and to identify any possible support
network, the Department interviewed Mother, Father, and two collateral contacts who
wished to remain anonymous. Mother reported that she has a learning disability for
which she receives monthly benefits, and that she had three children previously removed
from her care, but Mother stated the children were removed because of a false allegation
that she had tried to suffocate her first baby while in the hospital. Mother admitted to
using marijuana during the pregnancy and self-reported that she was diagnosed with
bipolar disorder and depression but is not currently taking any medication for her mental
illness.
Throughout the interview, Father did most of the talking and was observed telling
Mother what to say, frequently cutting her off, raising his voice, and telling Mother to
stop talking. This was a particular concern because Department records showed that
Mother had a long history of staying with people who took advantage of her and her
monthly disability income, and who subjected her to abuse. When asked about their
plans to care for J.J., both parents stated that Mother would take care of the infant on her
own. Mother stated that she does not need any help caring for the infant.
The two collateral contacts were interviewed separately, and both were familiar
with Mother’s developmental delays. Both reported that she needed a lot of guidance and
support, but neither would be available to provide such ongoing support. They stated that
4
Mother would not be able to care for J.J. on her own, that the parents were not stable
enough to care for an infant at that time, and one also expressed concerns about Father’s
behavior toward Mother.
The Department had immediate concerns for J.J.’s safety given Mother’s child
welfare history, her lack of a support network, and both parents’ minimizing or denying
Mother’s need for ongoing assistance in order to care for an infant, as well as Father’s
efforts to control Mother and silence her when she tries to speak for herself. J.J. was
detained pursuant to a detention warrant on June 18, 2021.
On June 22, 2021, the Department filed the initial section 300 petition alleging
that J.J. came within subdivisions (b)(1) (failure to protect) and (j) (abuse or neglect of
sibling). Both parents appeared by telephone at the detention hearing held the following
day and were appointed counsel. The juvenile court found a prima facie case had been
established, detained J.J. in temporary foster care, and ordered weekly supervised
visitation.
C. JURISDICTION/DISPOSITION
On July 14, 2021, the Department filed a first amended petition alleging that
Mother’s parental rights as to J.J.’s three older half siblings had been terminated in 2009
and 2011, that Mother was unable to provide adequate care and supervision to her
previous child who was removed from her care in 2008, that Mother is involved in a
domestic violence relationship with Father, that Mother has an untreated mental health
5
diagnosis, and that Father knew or should have known that J.J. would be at risk if left in
Mother’s care.
Both parents were interviewed again for the jurisdiction/disposition report. Father
denied any domestic violence but admitted telling Mother that she did not have to tell the
Department anything. He admitted being “a little aggressive” with Mother but stated this
was for Mother’s protection to prevent others from taking advantage of her. Father
acknowledged that Mother needs help with some tasks, such as cooking, and said:
“ ‘She’s slow, . . . I do a lot of things for her[,] but she can take care of her own
children.’ ” He reiterated that Mother’s child welfare history was based on lies and false
allegations, and that J.J. would be “ ‘in good hands’ ” if left in Mother’s care.
Mother also denied domestic violence. She acknowledged that she previously
took medication for her psychiatric diagnoses and stopped without seeking medical
advice but denied needing medication or other mental health treatment. Mother reported
she had never been on an involuntary psychiatric hold, although Department records
showed she had been hospitalized under section 5150 on May 9, 2009, requiring the court
to continue a May 11, 2009, hearing. Mother acknowledged her learning disability, but
denied that she was unable to meet the needs of her children: “ ‘I can read[,] but I can’t
understand what I’m reading. But I can take care of my child.’ ” She stated that she had
been enrolled in an infant health program that provided assistance with a previous child,
“ ‘[b]ut because I didn’t need the help, I left it. I can do everything on my own. My
learning disability doesn’t affect me.’ ” The Department attached to its
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jurisdiction/disposition report documentation of the previous dependency proceedings
involving J.J.’s older half siblings.
On July 15, 2021, Mother’s counsel requested the appointment of a guardian ad
litem for Mother. After conducting an inquiry, the juvenile court determined that Mother
was not capable of assisting her attorney and appointed a guardian ad litem. The court
also granted Father’s request for paternity testing and continued the jurisdiction and
disposition hearing to allow for receipt of the paternity testing results and for the guardian
ad litem to prepare.
The Department filed an addendum report on August 13, 2021, recommending:
(1) that Father be found J.J.’s presumed father based on the paternity testing results,
(2) that the allegations in the amended petition be found true, (3) that J.J. be removed
from the custody of both parents, (4) that Father be provided with family reunification
services, and (5) that Mother be bypassed for reunification services under section 361.5,
subdivisions (b)(10) and (b)(11). The addendum report noted several concerns with
Mother’s feeding of the child during supervised visits. During one visit, Mother had
refused to feed the baby because she did not “ ‘want to run out of formula.’ ” The social
worker had to explain to Mother the importance of maintaining the baby’s feeding
schedule and told her that she could be provided with more formula. On another visit,
Mother had overfed the baby, which caused her to vomit and stay awake crying that
night. On another visit, Mother wanted to feed the baby water instead of formula. The
Department noted that these were the same concerns regarding Mother’s inability to feed
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the child properly, among other issues, that had been documented with J.J.’s older half
sibling.
The report also noted that Father was refusing to participate in pre-disposition
services, that he informed the social worker on August 12, 2021, that he was no longer
living with Mother but refused to answer the social worker’s questions and screamed
throughout the phone call. On that date, Mother reported that she had moved into a new
home a month earlier but refused to provide the address to the social worker.
On November 16, 2021, the court held the further jurisdiction and disposition
hearing, found Father to be J.J.’s presumed father, found all the allegations in the first
amended petition true, declared J.J. a dependent child of the court, ordered her removed
from the physical custody of both parents, and ordered reunification services for Father.
Mother’s counsel argued that Mother had made a reasonable effort to address the
problems that led to the removal of J.J.’s half siblings and the termination of Mother’s
parental rights. The court found that the evidence showed Mother continuing to exhibit
the same problems in being unable to meet the child’s basic needs that she had with J.J.’s
half siblings, that Mother was still denying her parental rights had been terminated, and
was refusing to cooperate with the Department, for instance refusing to provide her
address to the social worker. The court denied reunification services for Mother under
section 361.5, subdivisions (b)(10) and (b)(11), maintained weekly supervised visitation,
and set a status review hearing for May 16, 2022.
8
D. SIX-MONTH STATUS REVIEW
The Department’s status review report filed May 12, 2022, noted that J.J. was
doing well in her current placement where she had been since July 2021, the current
caregiver was meeting her needs and had expressed interest in adoption in the event
Father failed to reunify. Father had completed his domestic violence program, his
attendance in individual counseling was “ ‘somewhat erratic,’ ” he failed to participate
and complete family education, and reported that he was homeless and unemployed. The
report again noted problems during the parents’ visits with J.J. Mother had to be
redirected to put away her phone as she “ ‘was always calling friends and family to
FaceTime’ ” during visits. Mother tried to feed the baby Vienna sausage during one visit
and had to be stopped because it posed a choking hazard to the baby. It was observed
that Father has to remind Mother during visits of things she had previously been warned
against, which leads to them bickering with each other, so separate visits for each parent
had to be arranged. Father continued to exhibit angry and impulsive behavior, using
expletives and hanging up on a social worker. The Department recommended that
Father’s reunification services be terminated, and a section 366.26 hearing be set to
establish a permanent plan of adoption for J.J.
The six-month status review hearing was continued to June 7, 2022, because
Mother’s guardian ad litem was unavailable. At the June 7 hearing, the court terminated
Father’s reunification services and set a section 366.26 hearing for October 5, 2022.
9
E. MOTHER’S SECTION 388 PETITION
Mother filed a section 388 petition on September 14, 2022, requesting that the
court return J.J. to Mother’s custody under a family maintenance plan, order an extended
visit, or, in the alternative, that family reunification services be granted to Mother. The
petition stated that Mother had completed parenting and domestic violence programs and
was seeing a psychiatrist. The petition stated that the requested order would be in the
child’s best interest because Mother had “completed services, acknowledged her issues,
and visits consistently.” Attached to the petition were certificates of completion for a
program for domestic violence victims and a nurturing parenting program as well as a
business card and appointment card showing that Mother had a September 20
appointment scheduled with a psychiatric nurse practitioner.
On September 15, 2022, the court denied Mother’s petition because it failed to
state a change of circumstances and does not promote the best interest of the child. The
court’s order explained: “At best, mother demonstrates changing circumstances, mother
has not provided any progress reports to show she benefitted from services. Mother does
not address what services she has participated in to overcome her learning disability that
hinders her ability to care for the child. Additionally, it was reported in the 5-16-2022
status review report that parents were always bickering with each other so visits were
separated.” On September 29, 2022, Mother filed a notice of appeal from the court’s
denial of her section 388 petition.
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F. SECTION 366.26 HEARING
On September 20, 2022, the Department filed a section 366.26 report
recommending that parental rights be terminated, and a permanent plan of adoption be
implemented. The report noted that J.J. shared a mutual bond and attachment with her
caregiver and prospective adoptive parent with whom she had been placed since July 13,
2021, when she was six weeks old. J.J. was having all of her needs met, had gained
weight, was healthy, and had been found eligible for early start regional center services
due to a 25 percent delay in the area of fine motor skills. The caregiver appeared to be
dedicated to J.J. and committed to raising her to adulthood.
On October 5, 2022, the juvenile court held the section 366.26 hearing. Mother’s
counsel objected to the Department’s recommendation to terminate Mother’s parental
rights, offered no affirmative evidence, and declined the court’s offer to set the matter for
contest so Mother could testify. Mother’s counsel read the following statement from
Mother to the court: “ ‘I know I made a mistake, but I learned from my mistake. I’m
trying to be a better mom and a better person. I’m not saying that I’m perfect, I’m not
saying that I’m better than anyone, but I’d like a second chance in being a mom. I just
want to be in my baby’s life. I did everything without the courts telling me to do it. I
learned a lot from my classes.’ ” The juvenile court set adoption as the permanent plan,
found by clear and convincing evidence that J.J. was generally and specifically adoptable,
found the beneficial parental relationship exception did not apply, terminated parental
rights, and set a post-permanency review hearing for April 5, 2023. On that same date,
11
Mother filed a notice of appeal from the juvenile court’s order terminating her parental
rights.
DISCUSSION
A. APPELLATE JURISDICTION
Relying on this court’s decision in In re J.F. (2019) 39 Cal.App.5th 70 (J.F.), the
Department argues that we lack jurisdiction to consider Mother’s appeal from the
September 15, 2022, order denying her section 388 petition because Mother’s notice of
appeal filed on October 5, 2022, designated only that day’s order terminating her parental
rights as the order being appealed. The Department, however, overlooks that Mother also
filed a separate notice of appeal on September 29, 2022, from the juvenile court’s denial
of her section 388 petition. We accordingly have appellate jurisdiction to review both
orders. (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).)
B. SECTION 388 PETITION
Mother contends that the juvenile court abused its discretion by denying her
section 388 petition without an evidentiary hearing because she had demonstrated her
circumstances had changed and that it was in the children’s best interest to be provided
with services. She claims that she had made the requisite prima facie showing, and the
court violated her due process rights by not affording her a hearing. She also claims the
court erred by basing its denial in part on Mother’s learning disability. We disagree.
12
“Under section 388, a parent may petition to change or set aside a prior order
‘upon grounds of change of circumstance or new evidence.’ [Citations.] The juvenile
court shall order a hearing where ‘it appears that the best interests of the child . . . may be
promoted . . .’ by the new order. [Citation.] Thus, the parent must sufficiently allege
both a change in circumstances or new evidence and the promotion of the child’s best
interests.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted (G.B.).) “A prima
facie case is made if the allegations demonstrate that these two elements are supported by
probable cause. [Citations.] It is not made, however, if the allegations would fail to
sustain a favorable decision even if they were found to be true at a hearing. [Citations.]
While the petition must be liberally construed in favor of its sufficiency [citations], the
allegations must nonetheless describe specifically how the petition will advance the
child’s best interests.” (Ibid.)
We review the juvenile court’s denial of Mother’s section 388 petition without an
evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295,
317-318 (Stephanie M.).) The denial must be upheld unless we can determine from the
record that the juvenile court’s decision exceeded the bounds of reason “by making an
arbitrary, capricious or patently absurd determination.” (In re A.S. (2009) 180
Cal.App.4th 351, 358; Stephanie M., at p. 318.) When two or more inferences can
reasonably be deduced from the facts, we have no authority to substitute our decision for
that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
13
“ ‘A “prima facie” showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by the petitioner is
credited.’ ” (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently,
section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the
“decision to grant a hearing on a section 388 petition would be nothing more than a
pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).)
“In determining whether the petition makes the necessary showing, the court may
consider the entire factual and procedural history of the case.” (In re Jackson W. (2010)
184 Cal.App.4th 247, 258.)
After reunification services are terminated, the focus in dependency proceedings
shifts from family reunification to the child’s need for permanency and stability.
(Stephanie M., supra, 7 Cal.4th at p. 317; G.B., supra, 227 Cal.App.4th at p. 1163.) A
court entertaining a section 388 petition at this stage in the proceedings “must recognize
this shift of focus in determining the ultimate question before it, that is, the best interests
of the child.” (Stephanie M., at p. 317.)
We conclude that the juvenile court did not abuse its discretion in denying
Mother’s section 388 petition without an evidentiary hearing. In her petition, Mother
alleged that her circumstances had changed because she had completed some of the pre-
disposition services she had been referred to, including a parenting class and domestic
violence program, and she had an upcoming appointment with a psychiatric nurse
practitioner. This does not show changed circumstances, only that her circumstances
14
were changing. Moreover, while Mother had completed a parenting class in
February 2022, the status review report filed three months later noted that during visits
Mother continued to exhibit an inability to safely feed J.J.—the very same problem that
had been documented by the Department with Mother’s previous children since 2004. In
addition, Mother spent the visiting time on her phone talking to friends and family and
had to be redirected to focus her attention on J.J. Furthermore, Father frequently had to
prompt Mother to remind her of things she was previously warned against, which led to
them bickering to the point that their visits had to be separated.
“Not every change in circumstance can justify modification of a prior order.
[Citation.] The change in circumstances must relate to the purpose of the order and be
such that the modification of the prior order is appropriate. [Citation.]” (In re A.A.
(2012) 203 Cal.App.4th 597, 612.) “In other words, the problem that initially brought the
child within the dependency system must be removed or ameliorated. [Citation.] The
change in circumstances or new evidence must be of such significant nature that it
requires a setting aside or modification of the challenged order. [Citation.]” (Ibid.)
Mother did not explain in her section 388 petition how she benefitted from the
services that she completed, in other words, how these services related to her ability to
provide safe and appropriate care for J.J. On the contrary, Mother’s continuing
inappropriate behavior during visits established that the problems that brought J.J. into
the dependency system clearly had not been eliminated. Mother had therefore failed to
establish a change in circumstances that would warrant granting her section 388 petition.
15
Furthermore, Mother did not establish that the requested change of order would
be in J.J.’s best interest. “At the point of these proceedings—on the eve of the
section 366.26 permanency planning hearing—the children’s interest in stability was the
court’s foremost concern and outweighed any interest in reunification. [Citation.]”
(Edward H., supra, 43 Cal.App.4th at p. 594.) “[A]fter reunification services have
terminated, a parent’s petition for either an order returning custody or reopening
reunification efforts must establish how such a change will advance the child ’s need for
permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Mother’s
request to have J.J. returned to her custody with family maintenance services would
undermine J.J.’s interest in stability and permanency. J.J. had been in a stable, loving
home where she had bonded with her caregiver who had met all of her needs since she
was just six weeks old, and who wanted to adopt her. Putting that on hold in order to
allow Mother six months of reunification services to see if she could do what she was
required to do to regain custody would not have promoted stability for J.J., and thus
would not have promoted the J.J.’s best interest. (In re Angel B. (2002) 97 Cal.App.4th
454, 464.)
Finally, Mother claims her due process rights were violated by the juvenile court’s
decision which denied her fair and meaningful access to the court simply because she had
a learning disability. We disagree. In denying the petition, the juvenile court focused not
on Mother’s learning disability, but rather on her inability to care for J.J. Specifically,
the court noted that Mother’s petition had failed to address how she benefitted from
16
services to help her “overcome her learning disability that hinders her ability to care for
the child.” (Italics added.) The primary concern that brought J.J. into the dependency
system was Mother’s demonstrated inability to properly follow care instructions to safely
meet J.J.’s most basic needs, such as feeding, without extensive and ongoing assistance
and guidance. The juvenile court properly focused on the fact that Mother’s petition did
not address how the services that she completed would ameliorate this concern. Because
the evidence showed Mother continued to endanger J.J., for example by attempting to
feed her a Vienna sausage without realizing it was a choking hazard to an infant, the
court found that Mother’s circumstances had not changed. Thus, the court based its
denial of Mother’s petition on Mother’s failure to address her difficulties providing care
for her daughter, not on Mother’s learning disability.
In sum, the juvenile court properly summarily denied Mother’s section 388
petition.
C. TERMINATION OF PARENTAL RIGHTS
Although Mother filed a notice of appeal from the juvenile court’s order
terminating her parental rights as to J.J., Mother provides no argument whatsoever on the
subject. Mother has accordingly forfeited any claim of error regarding the termination of
her parental rights, and we therefore affirm the order. (J.F., supra, 39 Cal.App.5th at
pp. 79-80.)
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DISPOSITION
The juvenile court orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.
18
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in summarily denying the mother's section 388 petition because she failed to demonstrate changed circumstances or that the requested relief was in the child's best interest, and she forfeited any challenge to the termination of parental rights by failing to raise arguments on appeal.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 petition without an evidentiary hearing?
Did the juvenile court violate the mother's due process rights by considering her learning disability in the context of her ability to care for the child?
Did the mother forfeit her challenge to the order terminating parental rights by failing to provide argument on appeal?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court did not abuse its discretion in denying Mother’s section 388 petition without an evidentiary hearing.”
“Mother did not explain in her section 388 petition how she benefitted from the services that she completed”
“Mother has accordingly forfeited any claim of error regarding the termination of her parental rights, and we therefore affirm the order.”