Opinion
E082524
08-08-2024
In re A.C. et al., Persons Coming Under the Juvenile Court Law. v. C.S. et al., Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Appellant, C.S. Melissa A. Chaitin, under appointment by the Court of Appeal, for Appellant, C.M. Tom Bunton, County Counsel and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J290945, J290946,) J290947, J294367. Steven A. Mapes, Judge. Affirmed in part and dismissed in part.
Jesse McGowan, under appointment by the Court of Appeal, for Appellant, C.S.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Appellant, C.M.
Tom Bunton, County Counsel and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ J.
The maternal grandparents of four dependent children appeal from the denial of a petition that grandfather filed under Welfare and Institutions Code section 388. (Unlabeled statutory references are to the Welfare and Institutions Code.) We dismiss the grandmother's appeal and otherwise affirm.
BACKGROUND
I. Proceedings resulting in the termination of parental rights
We take these facts from our unpublished opinion affirming the termination of parental rights. (In re A.C. (June 6, 2024, E082520) [nonpub. opn.].)
The family came to the attention of San Bernardino County Children and Family Services (CFS) in October 2021. CFS received a referral alleging physical abuse of A.C., the three-week old daughter of C.S. (mother) and N.C. (father) (collectively, parents). A.C. had been admitted to the hospital and had parietal bone fractures on both sides of her skull, subdural hematomas on both sides of her head, microhemorrhages in her brain, three "'corner fractures'" on her right leg, and subconjunctival hemorrhaging in her eye. Dr. Komal Aziz performed a forensic examination of A.C. and opined that A.C.'s injuries were caused by blunt force trauma, shaking, and/or falling from a significant height. She concluded that A.C.'s injuries were most consistent with abusive head trauma and physical abuse.
In separate interviews with a social worker and a sheriff's deputy, parents initially denied causing A.C.'s injuries or knowing how the injuries were caused. Father eventually told the deputy that he had accidentally dropped A.C. The deputy recorded father's reenactment of the incident and showed the video to Dr. Aziz. According to the doctor, A.C.'s injuries were not consistent with father's explanation.
CFS asked parents to bring their other two children to the hospital for assessment. Their five-year-old son, A.A., had no injuries. But x-rays of their one-year-old daughter, E.C., showed fractures to the back of her ribs. Dr. Aziz noted that the healing fractures on E.C.'s ribs were typically caused by squeezing or compression of the rib cage or direct blows. Given that parents did not provide any history to explain those findings, the doctor concluded that E.C.'s injuries were highly suspicious for physical abuse.
The court issued a protective custody warrant to detain all three children, and CFS placed them with a relative on an emergency basis. CFS filed petitions alleging that A.C. and E.C. were described by subdivisions (a), (b), (e), and (j) of section 300, while A.A. was described by subdivisions (a) and (j) of section 300. At the detention hearing, the court adopted the findings and orders recommended by CFS and detained the three children from parents.
In interviews with a social worker after the detention hearing, parents reported that no one in the home caused A.C.'s injuries. Father claimed that he never told the deputy that he lost hold of A.C.'s head and dropped her. Parents claimed that they conducted their own investigation and discovered that A.C. and E.C. suffered from a genetic condition that affected their bones. Both parents otherwise denied a family history of fragile or easily broken bones.
A.A. spoke with a forensic interviewer in November 2021 and disclosed that father hit E.C. with his hand, causing her to cry "'a lot,'" which caused mother and father to argue. A.A. also reported that father hit A.A. with his hand.
E.C. underwent genetic testing, and the geneticist found "[n]o clinically relevant alterations [were] detected." The testing revealed a single variant of "uncertain clinical significance" in a particular gene that the geneticist determined was "not expected to explain [E.C.'s] history of fractures." Dr. Aziz reviewed the results and reported that they did not change her forensic opinion. Because E.C.'s results did not identify anything, A.C. did not undergo any genetic testing.
A.C., E.C., and A.A. were placed together in a nonrelative foster home in August 2022. The children had not suffered any further injuries since they had been in CFS's care.
In late August 2022, mother gave birth to another daughter, Ei.C. On the basis of the injuries to Ei.C.'s siblings, CFS determined that Ei.C. was also at risk of physical abuse. CFS filed a petition alleging that Ei.C. was described by section 300, subdivision (j), because her siblings were physically abused while in parents' care. In September 2022, the court detained Ei.C. from parents. Ei.C. was eventually placed in the same foster home as her siblings.
The contested jurisdiction and disposition hearings took place over the course of numerous days in October and November 2022 and February and March 2023. Dr. Aziz and a social worker testified on behalf of CFS, and parents and an orthopedic surgeon testified on behalf of parents.
The juvenile court took jurisdiction over all four children, finding true the allegations under subdivision (j) of section 300 for all four children and also finding true the allegations under subdivisions (a), (b), and (e) of section 300 as to A.C. and E.C. The court declared the children dependents and removed them from parents' custody. The court denied parents reunification services under section 361.5, subdivision (b)(5), (6), and (7), and it denied both parents visitation. The court set a section 366.26 hearing to select a permanent plan for the children.
Both parents petitioned for extraordinary writ review of the order setting the section 366.26 hearing. We denied the petitions in an unpublished opinion. (C.S. v. Superior Court (May 30, 2023, E080818) [nonpub. opn.].)
In June 2023, CFS submitted a report prepared for the section 366.26 hearing. All four children resided in the same home in which the three oldest children were placed in August 2022. CFS indicated that the children were all doing well physically, emotionally, and developmentally and that the three youngest children-Ei.C., E.C., and A.C.-were emotionally attached to their caregivers.
The court held the section 366.26 hearing in November 2023. Both parents objected to the termination of parental rights. The court overruled the objections, found the children likely to be adopted, and terminated parental rights. Both parents appealed from the order terminating parental rights. We affirmed in an unpublished opinion. (In re A.C., supra, E082520.)
II. Section 388 petitions
On the day of the scheduled section 366.26 hearing, grandfather filed a section 388 petition. He wanted the court to "release the children, put the kids with me and my wife. Dismiss the case," which he asserted would be in the children's best interest "because it would give protection to the children, and their health and life would be taken care of with their family." In support of the petition, grandfather submitted a 24-page letter that he authored and a letter from a board-certified endocrinologist, Dr. Robert Bernstein.
Mother filed a section 388 petition the day before the hearing. She also attached Dr. Bernstein's letter to her petition. Mother's petition is not included in the record on appeal.
The court disposed of the section 388 petitions filed by mother and grandfather at the same hearing, so the reporter's transcript in this appeal includes the court's denial of mother's section 388 petition. The reporter's transcript makes clear, and the parties do not dispute, that mother attached Dr. Bernstein's letter to her petition.
Dr. Bernstein reviewed various medical records of A.C., E.C., and mother and opined that it was "more probable than not" that A.C.'s and E.C.'s bruising and bone fractures "were caused by the congenital abnormalities suffered by both children, rather than from abuse." In his letter, grandfather accused the county officials, the social workers, the county's attorneys, and the trial judge of being corrupt, violating the law, and committing various human rights and civil rights violations.
At the hearing, the juvenile court heard argument on whether mother made a prima facie showing on her section 388 petition. The court denied the petition. The court assumed for the sake of argument that Dr. Bernstein's opinion constituted new evidence and concluded that mother failed to make a prima facie showing that the modification she requested would be in the children's best interest.
The court did not rule on grandfather's petition orally at the hearing, stating "I'll deal with that in chambers." The court issued an order summarily denying the petition on the basis that grandfather's request did not include "new evidence" or assert a change of circumstance and because the requested relief was not in the children's best interest.
At the hearing, the court summarily denied a section 388 petition that grandfather filed in July 2023. The juvenile court excused grandfather and directed him to leave the courtroom after it denied the July 2023 petition. That petition is not included in the record on appeal. The parties mistakenly assume that the on-the-record denial involved the November 2023 petition that is the subject of this appeal. But it did not. After excusing grandfather, the court remarked: "I got a new one from Grandfather this morning, and I'll deal with that in chambers."
DISCUSSION
I. Standing
CFS contends that grandparents lack standing to appeal. We disagree as to grandfather but agree as to grandmother.
An order denying a section 388 petition is an appealable postjudgment order. (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.); § 395, subd. (a)(1).) "In juvenile dependency proceedings, as in civil actions generally (see Code Civ. Proc., § 902), only a party aggrieved by the judgment has standing to appeal." (In re Lauren P. (1996) 44 Cal.App.4th 763, 768 (Lauren P.); K.C., at p. 236.) "To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision." (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.)
Grandfather is appealing from the order denying the section 388 petition that he filed. As the petitioner, he was aggrieved by the denial and accordingly has standing to appeal. (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-705.)
The question as to grandmother is different in that she did not join the section 388 petition but separately appeals from its denial. Grandmother is not party of record in the proceeding. She therefore does not have standing to appeal. (Lauren P., supra, 44 Cal.App.4th at p. 768 [only a party has standing to appeal].) We consequently dismiss grandmother's appeal.
The dismissal of grandmother does not affect the scope of our review, because grandmother merely joined grandfather's arguments and did not make any arguments of her own.
II. Section 388
Grandfather contends that the juvenile court abused its discretion by denying his petition, because he made a prima facie showing for relief under section 388. We disagree.
"Section 388 provides for modification of juvenile court orders when the moving party (1) presents new evidence or a change of circumstance and (2) demonstrates modification of the previous order is in the child's best interest." (In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194; § 388, subd. (a)(1) (§ 388(a)(1)).) The petitioner bears the burden of showing that there is new evidence or that circumstances have changed and that the proposed modification would be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The court may deny a section 388 petition without holding an evidentiary hearing if the petitioner fails to make a prima facie showing of either factor. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; Cal. Rules of Ct., rule 5.570(d)(1).) We review for abuse of discretion the summary denial of a section 388 petition. (In re R.F. (2023) 94 Cal.App.5th 718, 728.)
The juvenile court did not abuse its discretion by summarily denying grandfather's petition. It was not possible for the court to grant grandfather the relief that he requested. Grandfather contended that the jurisdictional allegations were false, and on that basis he asked the court to "[d]ismiss the case" and to place the children with grandparents. But grandfather's request for placement is the only reason he had standing to bring the petition (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035), and the court would not have any authority to place the children with grandparents if it vacated the true findings on the allegations and dismissed the petition. The court therefore could not have granted grandfather the relief that he requested-if the court agreed with the sole ground for grandfather's petition (i.e., that the allegations were false and the court thus lacked jurisdiction), then the court would be deprived of jurisdiction to grant the only request that gave grandfather standing. The juvenile court consequently did not abuse its discretion by summarily denying grandfather's section 388 petition.
In his appellate briefs, grandfather characterizes the relief that he requested as asking the juvenile court to vacate the true findings on the "intentional abuse" allegations only, and he contends that would have allowed the juvenile court to maintain jurisdiction over the children so that it could have granted his relative placement request. (§ 361.3, subd. (a)(3).) That characterization is not supported by the record. Grandfather did not request any relief that envisioned the juvenile court's retention of jurisdiction over the children. Rather, he explicitly asked the juvenile court to "[d]ismiss the case." In general, a litigant "may not assert theories on appeal which were not raised in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) Application of that principle is particularly appropriate here, as we cannot analyze whether the juvenile court abused its discretion by denying grandfather relief that he did not even request.
In any event, even if the juvenile court could have granted grandfather the requested relief, the juvenile court did not abuse its discretion by summarily denying the petition. Grandfather's petition was based entirely on the purportedly new evidence of Dr. Bernstein's medical opinion, as outlined in a letter from Dr. Bernstein. Mother submitted the same letter in support of the section 388 petition that she filed the day before grandfather filed his. Evidence that was previously submitted to the court is not new. It accordingly does not satisfy section 388(a)(1)'s "new evidence" requirement. The juvenile court consequently did not abuse its discretion by summarily denying the petition.
DISPOSITION
The appeal as to grandmother is dismissed. The order denying grandfather's November 1, 2023, section 388 petition is affirmed.
We concur: McKINSTER Acting P. J., MILLER J.