Opinion
D076000
10-18-2019
In re A.N., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.N., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519613) APPEAL from an order of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
J.N. (Mother) appeals a juvenile court order denying ex parte a petition filed under Welfare and Institutions Code section 388. In the petition, Mother requested modification of a prior juvenile court order placing her child, A.N., with licensed foster caregivers. She requested that the juvenile court enter a new order placing A.N. with her or, alternatively, continuing reunification services for her.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The San Diego County Health and Human Services Agency (the Agency) urges us to affirm on two bases. First, the Agency contends we lack jurisdiction to consider Mother's appeal because the notice of appeal she filed in the juvenile court did not sufficiently identify the order denying her section 388 petition and instead purported to appeal a separate order terminating her parental rights as to A.N. Second, the Agency urges us to affirm the ruling on grounds that the juvenile court properly exercised its discretion in denying the section 388 petition.
We do not accept the Agency's jurisdictional argument, as Mother's timely filed notice of appeal may liberally be construed to encompass the order denying her section 388 petition. However, we agree with the Agency that the juvenile court properly exercised its discretion in denying the section 388 petition. Therefore, we affirm the order.
II
BACKGROUND
A
Mother has a long history of substance abuse and participation in physically abusive relationships with men. During Mother's pregnancy with A.N., A.N.'s alleged father hit Mother with a closed fist on several occasions and once targeted her with a moving vehicle. Mother used methamphetamine four to five times per week during the pregnancy until the day before she gave birth. At the time of A.N.'s birth, Mother and A.N. both tested positive for amphetamine and methamphetamine, among other drugs.
A.N.'s alleged father did not appeal the findings and orders of the juvenile court. He is referenced in this opinion only to the extent such references are relevant to Mother's appeal.
Soon after Mother gave birth to A.N., A.N. was taken into protective custody and placed in a licensed foster home. The Agency filed a dependency petition alleging A.N. suffered or was at a substantial risk of suffering serious physical harm or illness due to acts of domestic violence and substance abuse committed by A.N.'s parents. (§ 300, subd. (b)(1).) The juvenile court sustained the jurisdictional allegations in the petition, placed A.N. with the foster caregivers with whom he resided, and granted Mother supervised visitation. Further, it ordered the Agency to provide reunification services to Mother and directed her to comply with the services offered. Mother's case plan required her to participate in domestic violence and parenting education programs, meet with a substance abuse specialist, and submit to random drug and alcohol testing.
Mother initially showed signs of progress towards reunification. She participated in a substance abuse treatment program, attended parenting and domestic violence classes, submitted to drug tests yielding negative test results, and visited A.N. However, all progress soon came to a halt. Mother was discharged from her substance abuse and domestic violence programs due to excessive absences, left the United States to live with A.N.'s physically abusive alleged father in another country, and began using methamphetamine daily. Further, she failed to appear at multiple scheduled visitations with A.N. and did not visit A.N. for several months.
Based on Mother's failure to make substantial progress in her case plan services and the inconsistency of her visitation efforts, the Agency recommended that the juvenile court, among other things, terminate reunification services for her and schedule a section 366.26 hearing. During a contested six-month review hearing, the court found Mother had made no progress with her case plan, ordered placement of A.N. with the foster caregivers, and adopted the Agency's recommendations. The court also granted a request filed by the foster caregivers to be designated A.N.'s de facto parents.
Following the six-month review hearing, Mother continued her methamphetamine habit and again returned to live with A.N.'s alleged father. However, after several months, she finally stopped living with A.N.'s alleged father, resumed substance abuse treatment, and gave birth to another child. She also visited A.N. in person four times and expressed a desire to have A.N. placed with her.
Notwithstanding these positive developments, the Agency recommended that the juvenile court terminate Mother's parental rights and implement a permanent plan of adoption. As the Agency explained in its recommendations to the court, Mother did not gain insight into the domestic violence and substance abuse concerns giving rise to the dependency proceeding, Mother's visitations with A.N. were inconsistent, and the relationship between Mother and A.N. was not healthy or significant. In its report to the court, the Agency further explained that A.N.'s de facto parents provided the child a loving and supportive home throughout the dependency proceeding.
B
On May 30, 2019, the day of the section 366.26 hearing, Mother filed a section 388 petition to modify the juvenile court's prior order removing A.N. from her custody and placing A.N. outside the home. She requested a new order placing A.N. with her or, in the alternative, vacating the section 366.26 hearing and continuing reunification services. She argued the modification was warranted because she had "showed substantial progress in programming" and had cared for her newborn for a period of one month, which demonstrated "successful parenting." Further, she argued the modification would be in the best interests of A.N. because the parent-child relationship is "statutorily-preferred" and A.N. should be permitted to "bond" with the new sibling.
The court denied the section 388 petition ex parte without ordering an evidentiary hearing. It found Mother alleged, at most, "changing" circumstances, but "certainly not changed circumstances." It also found modification of its previous order would not be in the best interests of A.N., whose de facto parents were willing to formally adopt the child. Proceeding to the section 366.26 hearing, the court adopted the recommendations of the Agency, terminated Mother's parental rights, referred A.N. for adoptive placement, and designated A.N.'s de facto parents as prospective adoptive parents.
On June 10, 2019, Mother filed a notice of appeal indicating she appealed the following order: "MAY 30, 2019: ORDER TERMINATING PARENTAL RIGHTS FOR [A.N.]." She checked a box on the Judicial Council of California notice of appeal form (JV-800) indicating the order subject to appeal was rendered pursuant to section 366.26. She did not check a catchall box applicable to "[o]ther appealable orders relating to dependency."
III
DISCUSSION
A
The juvenile court entered the order denying Mother's section 388 petition on May 30, 2019, the same day as the section 366.26 hearing at which it terminated her parental rights. She filed her notice of appeal 11 days later, on June 10, 2019. The notice of appeal states the date and a description of the order subject to the appeal (May 30, 2019 order terminating parental rights). The notice of appeal does not reference the section 388 petition. Based on the notice of appeal, the Agency contends Mother appealed only the order terminating her parental rights. Therefore, the Agency claims we lack jurisdiction to assess the merits of the order denying the section 388 petition.
" '[A]n appealable judgment or order is a jurisdictional prerequisite to an appeal.' " (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571.) The notice of appeal sets forth the scope of our review and must identify the judgment or order being appealed. (Cal. Rules of Court, rule 8.405(a)(3); Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) However, we generally must construe notices of appeal liberally " 'to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' " (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1249; see Cal. Rules of Court, rule 8.405(a)(3).)
Applying a liberal construction to the notice of appeal in the present case, we conclude it is reasonably clear the notice of appeal encompasses the order denying Mother's section 388 petition. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451 (Madison W.) [construing notice of appeal referencing parental rights termination order to include order denying section 388 petition]; In re Angelina E. (2015) 233 Cal.App.4th 583, 585, fn. 2 (Angelina E.) [same].) The court issued both the order terminating Mother's parental rights and the order denying the section 388 petition on the same date, which Mother expressly identified in the notice of appeal. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 ["Liberal construction is particularly appropriate here because the jurisdictional finding and dispositional order were rendered simultaneously on January 9, 1992—the date specified in the notice of appeal...."].) Further, she filed the notice of appeal in a timely manner, just 11 days after the court issued the order denying the section 388 petition and well within the 60-day deadline to appeal. (Cal. Rules of Court, rule 8.406(a)(1).)
In support of its argument that we lack jurisdiction to consider the juvenile court's ruling on the section 388 petition, the Agency relies on In re J.F. (2019) 39 Cal.App.5th 70, 73. In J.F., the juvenile court denied a parent's section 388 petition and, 44 days later, terminated the parent's rights as to the child. (Id. at p. 73.) The parent filed a notice of appeal specifying only the date and description of the parental rights termination order—not the date or a description of the order denying the section 388 petition issued a month and a half earlier. (Ibid.) The Court of Appeal concluded it lacked jurisdiction to assess the section 388 order because it "was entered many days before the juvenile court terminated parental rights, and the notice of appeal from the termination order did not mention whatsoever the earlier order or the date it was entered ...." (J.F., at p. 78.)
The J.F. decision is distinguishable from the case at hand. Unlike the juvenile court orders at issue in J.F., the section 388 order and the parental rights termination order in this case were both issued by the juvenile court on the same date at the same hearing. Further, unlike the parent in J.F., Mother expressly specified the date of the order denying the section 388 petition in the notice of appeal, which she filed just 11 days after the court issued the order. Given these facts, we believe it is reasonably clear the notice of appeal in the present case, when subject to a liberal construction, encompasses the order denying the section 388 petition. Further, the Agency does not contend it has suffered or will suffer prejudice based on a liberal construction of the notice of appeal that encompasses the juvenile court's order denying the section 388 petition.
For all these reasons, we conclude we have jurisdiction to consider the challenge to the juvenile court's section 388 order. (See Madison W., supra, 141 Cal.App.4th at pp. 1450-1451; Angelina E., supra, 233 Cal.App.4th at p. 585, fn. 2.) Therefore, we now proceed to the merits of Mother's appeal.
B
Under section 388, any person having an interest in a dependent of the juvenile court may petition to change, modify, or set aside a prior order of the court. (§ 388, subd. (a)(1).) The petitioner bears the burden of showing: (1) there has been a change of circumstance or new evidence; and (2) the modification is in the child's best interests. (Id., subds. (a)(1) & (d); In re Z.F. (2016) 248 Cal.App.4th 68, 72-73.) If the petitioner makes a prima facie showing these elements are satisfied, she is entitled to an evidentiary hearing. (§ 388, subd. (d); In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463.)
However, " 'if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition.' " (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445; see Cal. Rules of Court, rule 5.570(d).) The prima facie requirement is satisfied only when "the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Daniel C., at p. 1445.) We review an order on a section 388 petition under an abuse of discretion standard. (Ibid.)
On the record before us, we conclude the juvenile court did not abuse its discretion in finding that Mother failed to make the prima facie showing necessary to warrant an evidentiary hearing. Assuming, without deciding, Mother's newborn child and recent (though not prolonged) reengagement with parenting and substance abuse services constituted changed circumstances, the juvenile court was well within its discretion in finding A.N.'s best interests would not be served by the requested modification.
Mother filed her section 388 petition the same day as the section 366.26 hearing, at which point the child's need for permanency and stability is the paramount concern. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-318.) Placement of A.N. with Mother or continued reunification services undoubtedly would have upended—not promoted—A.N.'s permanency and stability. It would have removed A.N. from the only home the child had known since birth or, at minimum, delayed the permanency attendant to formal adoption. Further, while A.N. has suffered some developmental delays due in part to Mother's substance abuse, there is no dispute that A.N.'s caregivers have satisfied A.N.'s medical and emotional needs, bonded with A.N., and provided a loving home in which A.N. is thriving. Those caregivers expressed an early commitment to formally adopt A.N., which they maintained throughout the dependency proceeding up to and including at the section 366.26 hearing.
In her section 388 petition, Mother contended the requested modification would have been in A.N.'s best interests because it would have strengthened A.N.'s relationship with Mother. However, given the late stage of the dependency proceedings, A.N.'s "interest in stability was the court's foremost concern and outweighed any interest in reunification." (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) Further, Mother made no allegations, let alone sufficient allegations, that her relationship with A.N. could be mended. A.N. has never lived with Mother. Mother's contact with A.N. has been inconsistent, at best, and she has absconded abroad for months at a time without notice to A.N. or the foster caregivers. The Agency summed it up best in an addendum report filed prior to the section 366.26 hearing: "The relationship between [A.N.] and [Mother] ... cannot be described as a healthy or significant parent-child relationship, and it does not outweigh the benefits of stability, safety, and security that adoption will provide."
Mother also asserted the requested modification would have been in A.N.'s best interests because A.N. had thus far been "denied" an opportunity to "bond" with A.N.'s newborn sibling. As an initial matter, these conclusory allegations did not articulate why the juvenile court's prior rulings had to be modified for A.N. to establish or maintain a sibling bond. According to the Agency, A.N.'s foster caregivers "expressed [an] openness [to] facilitating contact between [A.N.] and [the child's] sibling[] in the future." Were that the case, modification of the juvenile court's prior orders may not have been necessary to promote sibling bonding. Even if that were not the case, it was reasonable for the juvenile court to conclude that A.N.'s interest in obtaining permanency and stability with the foster caregivers outweighed the possibility A.N. might someday bond with the newborn sibling. (See In re Aaron R. (2005) 130 Cal.App.4th 697, 706-707.)
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. DATO, J.