Opinion
A156975
12-30-2019
In re C.J. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.J., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. Nos. JD14-3238, JD14-3238A)
The trial court denied C.J.'s (father) petition under Welfare and Institutions Code section 388 to permit him expanded visits with his children, C.J. and J.J. (children). Father appeals, contending the trial court erred in ruling without holding an evidentiary hearing. We disagree and shall affirm the trial court's order.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
We have discussed the facts underlying this matter in prior proceedings arising from this case. (See In re C.J. (Feb. 2, 2017, A148255) [nonpub. opn.].) We recite here only the facts relevant to the issue before us in this appeal.
The trial court assumed jurisdiction over the children in late 2014 because of the San Francisco Human Service Agency's (Agency) concerns about, among other things, father's mental health. The court placed the children with their maternal great aunt and uncle. In late 2016, after providing father 18 months of services, the trial court terminated father's reunification services and set the matter for a permanency hearing pursuant to section 366.26. We denied father's writ petition challenging that ruling. (In re C.J. (Feb. 2, 2017, A148255) [nonpub. opn.].) At the section 366.26 hearing, the trial court found the children were not adoptable and ordered that they remain in the care of their maternal great aunt and uncle. The trial court ordered that father's visitation with the children continue.
At a six-month review hearing in August 2017, the trial court renewed the children's dependency and placement and continued father's visitation. The court also ordered, "All parties agree to father has [sic] more time to visit w[ith] children." This order was apparently based on a social worker's report that father had been consistently visiting with the children once per week at their after-school program and that the children's great aunt had invited father to the children's sports games and birthday parties. While their great aunt was not ready to monitor longer visits with father during the weekend, the social worker recommended allowing father a weekend visit every other month or once per quarter if Agency personnel were available.
In January 2018, father requested a Marsden hearing to replace his court-appointed attorney. Father was dissatisfied with his counsel's representation in part because father wanted to formalize the court's order that he have more time to visit with the children. The trial court denied father's Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
At the six-month review hearing in April 2018, the social worker reported that father had been visiting with the children far more than the minimum required. Father had monitored visits with both children once per week at their after-school program. The children's caregiver had also invited him to attend some of the children's weekend sports games, and the social worker had scheduled two supervised visits during the holidays. However, the social worker reported having some difficulty in planning for the visits because father continued to fixate on regaining custody of the children. Father also may have been telling the children that he would regain custody over them. The social worker further remarked that the children's caregivers had noted that father often seemed "out of it" or "all over the place." Because the children were having trouble transitioning after visiting with father, the social worker recommended limiting visits to twice per month, rather than once per week, and that visits remain supervised and monitored. However, the trial court made no changes to father's visitation.
At the next review hearing in October 2018, the social worker reported that father had weekly visitation at the children's after-school program, occasional weekend visits at children's extracurricular activities, and one supervised community visit.
In February 2019, the trial court held another Marsden hearing, at which it granted father's request to represent himself but ordered that father's attorney at the time, Hong Chew, continue to serve as father's advisory counsel.
In preparation for the April 2019 review hearing, the social worker reported that father continued to have weekly after-school visits and a monitored visit once per month. The father was also able to attend the children's sports games and recitals. The social worker did not recommend any changes to visitation.
At the April 2019 review hearing, father provided the court a copy of a petition to modify an order of the court on form JV-180 that he had filed that morning. Father indicated that the order he wanted changed was the court's August 24, 2017 order, which stated: "All parties agree to father has [sic] more time to visit with children." In the form's space for telling the court what had happened that might warrant changing the order, father wrote, "I did not receive adequate representation from any of the attorneys appointed to me, except Hong Chew." Father stated that he was requesting a new order "[t]hat visits between the children and I be expanded to unsupervised visits and overnights" and that "the Human Services Agency pay for my travel expenses to and from visits, approximately $50." Finally, father stated that his petition was in the children's best interest "because they would be able to spend time with father doing other activities than we do now. I also have to split the time with their engagement in the activities of the program, which include them playing with others or doing what the program is doing. J[.J.] would like to spend multiple hours in a row with [hi]m doing different things, such as movies, going to parks, bowling, eating at restaurant and even doing homework or reading books."
After father provided courtesy copies of his petition to all the parties, counsel for the Agency stated that the Agency opposed the motion and requested a hearing on it. The trial court then stated, "I'm not going to grant this. I don't see any changed circumstances, and I don't see that the standard has been met at this time." The court later explained that its finding was based on what father had stated in the form, as well as the entire record in the case, which the court judicially noticed. The court also found that the petition was not in either of the children's best interest. In its written order, the court stated that it denied father's petition because circumstances had not changed and that it was maintaining the current visitation order.
II. DISCUSSION
Father argues the trial court erred in denying his section 388 petition without a hearing because he made a prima facie showing of new information relating to his visitation rights and that expanding visitation was in the children's best interest. We disagree.
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. The petition must be verified and 'shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.' (§ 388.) [¶] The parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]' [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court's summary denial of a section 388 petition for abuse of discretion." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; see also Cal. Rules of Court, rule 5.570(d)(1)-(2).)
Father argues that his section 388 petition raised new information for the court to consider by implying that the court's prior visitation order was insufficient or was not being met. But in the section of his petition discussing new information or changed circumstances, father alleged only that he had not received adequate representation from his former attorneys. Evidence of ineffective assistance of counsel could conceivably warrant reconsideration of a prior order, assuming the evidence was not available at the time the original order was entered and it demonstrated that the ineffective assistance prejudiced the movant. (See In re Jackson W. (2010) 184 Cal.App.4th 247, 258-259, 261 [claim of ineffective assistance of counsel can be raised via section 388 petition, but trial court properly denied claim without a hearing where movant did not provide prima facie evidence of prejudice]; In re H.S. (2010) 188 Cal.App.4th 103, 105 ["the term 'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered"].) But father's petition did not explain how his attorneys' alleged inadequate representation related to the visitation order that he was challenging, much less that it prejudiced him. To trigger his right to an evidentiary hearing, father had the burden of specifically describing the evidence that he wanted to present at the hearing and could not rest on mere conclusory statements or allegations. (In re Anthony W., supra, 87 Cal.App.4th at pp. 250-251.) Father's bare assertion of inadequate representation was insufficient to meet this obligation.
Father's statement elsewhere in his section 388 petition that he wanted expanded and unsupervised visitation does not change the analysis. Contrary to father's argument, these statements do not imply that the Agency was failing to comply with the court's prior order that father have more time to visit with the children. The purpose of a section 388 petition is to change an existing order, not enforce it. Consistent with that purpose, father's petition asked to expand his visits to include unsupervised and overnight stays, not enforce the existing visitation order. The record also demonstrates that father had participated in additional visits consistently after the trial court's August 2017 order that father have more time to visit the children. This makes it reasonable for the trial court not to interpret father's petition as attempting to enforce an existing order. Even construing father's petition liberally, as we must, we agree with the trial court that father did not make a prima facie showing of new information or changed circumstances.
Father's petition also failed to make a prima facie showing that his requested change was in the children's best interests. He alleged that the expanded visits would allow the children to spend more time with him specifically, rather than being distracted by their school or extracurricular activities and that J.J. wanted to spend more hours in a row with him. Father further asserts in his briefing here that his visits with the children had been loving and appropriate, suggesting that expanding the visits would benefit the children. But the trial court took judicial notice of the entire record in this action, as it was allowed to do. (In re Jackson W., supra, 184 Cal.App.4th at p. 258 [when determining whether section 388 petition requires a hearing, trial court may consider the entire factual and procedural history of the case].) The social worker reported in February 2018 that the children had difficulty transitioning after visits with father, perhaps because he had been telling them that he was going to regain custody of them. In addition, the children's caregivers had noted that father often seemed "out of it" or "all over the place." Father's section 388 petition gave no indication that his visits with the children were proceeding more smoothly than in the past or that it was in the children's interest to expand visitation despite these reported difficulties. On this record, the trial court did not abuse its discretion in finding father failed to make a prima facie showing that expanding father's visitation would be in the children's best interest.
Father contends that ordering an evidentiary hearing on his petition for additional visitation would not have prejudiced the children because it would not have affected their placement with their maternal great aunt and uncle. Even if this were true, that is not the standard for evaluating section 388 petitions. Because father's section 388 petition, liberally construed, did not make a prima facie showing of new information or changed circumstances or that his petition was in the children's best interest, we hold the trial court did not err by denying the petition without a hearing.
III. DISPOSITION
The order is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.