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Date: 09-28-2020

Case Style:

In re Samuel A., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services v. Patricia A.

Case Number: B302700

Judge: Perluss, P.J.

Court: California Court of Appeals Second Appellate District, Division Seven on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Liana Serobian

Defendant's Attorney: Amir Pichvai

Description: Patricia A., mother of three-year-old Samuel A., petitioned
pursuant to Welfare and Institutions Code sections 388 and 3901
to set aside jurisdiction findings concerning Patricia’s alcohol
abuse and mental instability and to terminate dependency
jurisdiction after a court-ordered psychiatric evaluation found
Patricia was not mentally ill and did not meet the diagnostic
criteria for alcohol use disorder. Incorrectly characterizing her
petition as an untimely new trial motion under Code of Civil
Procedure section 659, the court summarily denied it without
deciding whether Patricia had made a prima face showing of new
evidence or a change of circumstances that demonstrated the
relief requested would be in Samuel’s best interests, which would
require a hearing on the merits of the petition. We reverse.
1. Dependency Petition, Jurisdiction and Disposition
On January 16, 2019 the Los Angeles County Department
of Children and Family Services (Department) filed a section 300
petition alleging Patricia had an unresolved history of alcohol
abuse that made her unable to provide regular care for Samuel.
The Department filed an amended section 300 petition two weeks
later, adding the allegation that Patricia suffered from severe
and untreated anxiety and depression that also made her unable
to provide regular care for Samuel.
At the jurisdiction hearing on March 20, 2019 the court
sustained both allegations, finding Samuel to be a person
described under section 300, subdivision (b). Proceeding directly
to disposition, the court declared Samuel a dependent child of the
Statutory references are to this code unless otherwise
juvenile court, removed him from Patricia’s custody and ordered
monitored visitation for Patricia for a minimum of six hours
per week and various other family reunification services. We
affirmed the juvenile court’s jurisdiction finding based on
Patricia’s alcohol abuse and its disposition order removing
Samuel from Patricia’s custody with monitored visitation. We
did not address the court’s additional jurisdiction finding.
(In re Samuel A. (Dec. 16, 2019, B296535) [nonpub. opn.].)
2. Patricia’s Section 388 Petition
On August 28, 2019, prior to the six-month review hearing
(§ 366.21, subd. (e)), Patricia filed a section 388 petition seeking,
pursuant to section 390,2
to set aside the court’s jurisdiction
findings and to dismiss the amended section 300 petition in the
interests of justice.3
In support of her petition Patricia relied
primarily on the July 30, 2019 psychiatric evaluation prepared by
Dr. Suzanne M. Dupée pursuant to Evidence Code section 730,
which Patricia attached to her petition as an exhibit. Based on
Dr. Dupée’s July 2019 interview with Patricia, Patricia’s
Section 390 provides, “A judge of the juvenile court in
which a petition was filed, at any time before the minor reaches
the age of 21 years, may dismiss the petition or may set aside the
findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require the
dismissal, and that the parent or guardian of the minor is not in
need of treatment or rehabilitation.”
Several months earlier, Patricia had filed a section 388
petition based on different evidence, which the court denied
without a hearing. We dismissed Patricia’s appeal from that
order after a subsequent visitation order mooted the appeal.
(See In re Samuel A. (Feb. 18, 2020, B299022) [nonpub. opn.].)
responses on the Minnesota Multiphasic Personality Inventory-2
(MMPI-2) and Dr. Dupée’s telephone conversation with
Dr. Nadine Winocur, Patricia’s treating psychologist, Dr. Dupée
opined to “a reasonable degree of medical certainty that [Patricia]
does not suffer from any major mental illness that impairs her
ability to parent her child.” Although Dr. Dupée acknowledged
Patricia’s MMPI-2 results reflected “an extreme attempt” to
“present herself as being free of psychological problems in order
to influence the outcome” of the evaluation, preventing the
examiner from interpreting the results in “a straightforward
manner,” Dr. Dupée nonetheless concluded, based on her overall
evaluation of Patricia and consultation with Dr. Winocur, that
Patricia’s anxiety and anger management difficulties were a
“direct result of the dependency proceeding” and not any
underlying mental illness.
As to Patricia’s alcohol abuse, Dr. Dupée stated, “The
evidence indicates that [Patricia] has followed court orders to
complete substance abuse counseling. There is no evidence to
suggest ongoing alcohol abuse since January 2019 [when Samuel
was detained], although she reportedly drank for several months
after her son was removed.” In Dr. Dupée’s opinion Patricia did
not meet the diagnostic criteria for alcohol use disorder, which,
she stated, as currently defined in the Diagnostic and Statistical
Manual of Mental Disorders (DSM-5), includes both alcohol abuse
and alcohol dependency.
Patricia also supplied several reports prepared by visitation
monitors indicating she and Samuel shared a strong mother-child
bond and their visits had gone well. In addition, Patricia
asserted that Samuel’s health had declined while he had been in
the custody of his foster parent and it was in Samuel’s best
interests to be returned to her care.
On September 4, 2019 the court informed the parties of its
concerns about the lack of specific findings and test results in
Dr. Dupée’s report. The court ordered the Department to obtain
the psychometric testing data by the next scheduled hearing on
September 10, 2019, at which time the court would address both
a pending request by Patricia to dismiss her appointed counsel
and Patricia’s section 388 petition to set aside the jurisdiction
findings and dismiss the amended petition.
On September 10, 2019, following a Marsden hearing,4
court denied Patricia’s request to dismiss her appointed counsel
but granted her counsel’s request to withdraw from the case and
appointed new counsel. The court then granted Patricia’s new
counsel time to review the section 388 petition and the
psychometric test results supporting Dr. Dupée’s evaluation and
asked her counsel to advise the court thereafter whether Patricia
intended to proceed with the petition. The Department urged the
court to dismiss the section 388 petition outright, arguing it was
a motion for reconsideration or a new trial motion and, either
way, was untimely under the Code of Civil Procedure. The court
stated it would address those arguments at the next hearing if
Patricia decided to go forward with her section 388 petition.
See People v. Marsden (1970) 2 Cal.3d 118; In re M.P.
(2013) 217 Cal.App.4th 441, 455 (“‘[j]uvenile courts, relying on
the Marsden model, have permitted the parents, who have a
statutory and a due process right to competent counsel, to air
their complaints about appointed counsel and request new
counsel be appointed’”); In re Z.N. (2009) 181 Cal.App.4th 282,
289 (Marsden principles apply in dependency proceedings).
On September 12, 2019 the Department filed a walk-on
request for issuance of a restraining order to protect a social
worker, Samuel’s foster parent and Samuel from Patricia. The
Department informed the court that, after the last court hearing,
Patricia had gone to the home of Samuel’s foster parent despite
repeated warnings to stay away and her assurances to the court
at the prior hearing that she would follow that directive.
According to the Department, Patricia also called the child abuse
hotline and falsely accused the foster parent of following her in
his car and driving erratically with Samuel in the car. The
Department stated Patricia was becoming increasingly erratic
and dangerous. Prior to a court hearing in late August 2019, the
Department reported, Patricia violently threw documents at a
person, resulting in “numerous bailiffs [taking] more than
two hours to subdue [Patricia].” A sheriff’s deputy at the time
noticed Patricia smelled of alcohol. In addition, the Department
reported Patricia had exhibited volatile behavior toward the
social worker during a monitored visit with Samuel at the
Department’s offices on September 4, 2019, screaming the social
worker was a criminal and a child abuser. After Patricia was
unable to calm down and the social worker asked her to leave,
Patricia threatened the social worker, telling her “I know where
you live.” The social worker smelled alcohol on Patricia’s breath.
The Department also asked to include Samuel in the scope
of the restraining order, asserting Patricia’s “unpredictable and
violent conduct creates a substantial risk of detriment” to
Samuel. Following a recess, the court stated it was issuing a
temporary restraining order “on its own motion” until midnight
October 3, 2019. The court ordered a mental health evaluation
for Samuel, carved out an exception from the temporary
restraining order to permit Patricia to have telephonic visitation
with Samuel and set a further hearing on the restraining order
for October 3, 2019.
At the October 3, 2019 hearing Patricia’s counsel requested
the court grant the section 388 petition or schedule a hearing on
the merits; the Department urged the court to deny the petition
as procedurally improper and untimely; and Samuel’s counsel
stated she had no objection to setting the petition for hearing on
the same day as the upcoming six-month review hearing, as
several of the issues would overlap. Accepting the Department’s
argument the section 388 petition was procedurally improper and
an untimely new trial motion under Code of Civil Procedure
section 659, the court summarily denied the petition without
deciding whether Patricia had made a prima facie showing under
section 388 sufficient to warrant a hearing on the merits.
The court at the October 3, 2019 hearing also issued a
permanent restraining order in favor of the foster father and the
social worker and a temporary restraining order as to Samuel,
with carve-outs for online and telephone visitation with Patricia,
and set a further hearing for October 9, 2019.
Patricia filed a timely notice of appeal from the October 3,
2019 order summarily denying her section 388 petition.
1. Governing Law and Standard of Review
Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstances and demonstrates modification of the previous
order is in the child’s best interests. (In re Stephanie M. (1994)
7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
To obtain a hearing on a section 388 petition, the parent must
make a prima facie showing as to both elements. (In re K.L.
(2016) 248 Cal.App.4th 52, 61; In re G.B. (2014) 227 Cal.App.4th
1147, 1157; see Cal. Rules of Court, rule 5.570(d).)
The petition should be liberally construed in favor of
granting a hearing, but “[t]he prima facie requirement is not met
unless the facts alleged, if supported by evidence given credit at
the hearing, would sustain a favorable decision on the petition.”
(In re J.P. (2014) 229 Cal.App.4th 108, 127; accord, In re K.L.,
supra, 248 Cal.App.4th at p. 61.) The petition may not consist of
“general, conclusory allegations.” (In re Edward H. (1996)
43 Cal.App.4th 584, 593.) “Successful petitions have included
declarations or other attachments which demonstrate the
showing the petitioner will make at the hearing.” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.) When determining
whether the petition makes the necessary showing, “the court
may consider the entire factual and procedural history of the
case.” (In re K.L., at p. 62; In re Jackson W. (2010)
184 Cal.App.4th 247, 258.)
Section 390 authorizes a juvenile court to set aside findings
and dismiss a dependency petition if it finds (1) the interests of
justice and the welfare of the child require dismissal, and
(2) the parent is not in need of treatment or rehabilitation.
(See In re Y.M. (2012) 207 Cal.App.4th 892, 912 [parent may
petition juvenile court pursuant to section 388 to dismiss
dependency jurisdiction based on allegations the child’s best
interests would be promoted by terminating jurisdiction pursuant
to section 390; “[o]nce that prima facie showing has been made
and a hearing is held, the court may dismiss the dependency
petition if the court finds that ‘the interests of justice and the
welfare of the minor require the dismissal, and that the parent or
guardian of the minor is not in need of treatment or
rehabilitation,’” quoting section 390].)
We review the summary denial of a section 388 petition for
abuse of discretion. (In re K.L., supra, 248 Cal.App.4th at p. 61;
In re G.B., supra, 227 Cal.App.4th at p. 1158.) However, when
the court’s summary denial is based on a mistake of law on
undisputed facts, our review is de novo. (See In re R.T. (2017)
3 Cal.5th 622, 627 [court reviews juvenile court’s construction of
a statute de novo]; see also People v. Tran (2013) 215 Cal.App.4th
1207, 1217 [“[w]hen a trial court bases its ruling on a conclusion
of law, or a mistake of law, we review [the ruling] de novo”].)
2. The Court Erred in Concluding Patricia’s Section 388
Petition Was an Untimely New Trial Motion
Patricia’s section 388 petition was based on new evidence—
Dr. Dupée’s Evidence Code section 730 findings that Patricia did
not suffer from mental illness or meet the diagnostic criteria for
alcohol use disorder and therefore was not in need of treatment
or rehabilitation—and her contention, allegedly supported by
reports from visitation monitors of Patricia and Samuel’s
parent/child bond, that termination of dependency jurisdiction
would be in Samuel’s best interests. Rather than evaluating
whether the petition made the prima facie showing required for a
hearing under section 388, the court denied the petition outright,
concluding Patricia’s petition was simply “an untimely new trial
motion” pursuant to Code of Civil Procedure section 659. The
court erred. Filing a section 388 petition to terminate
dependency jurisdiction under section 390 is entirely proper.
(See In re Y.M., supra, 207 Cal.App.4th at p. 912 [recognizing
section 388 as appropriate procedural vehicle for parent to seek
termination of dependency jurisdiction pursuant to section 390];
In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014 [same].) That
is precisely what Patricia did here.
At the same time it summarily denied Patricia’s section 388
petition, the juvenile court granted a temporary restraining order
prohibiting Patricia from visiting Samuel in person and stated, if
it had to make a finding that day, it would find Patricia a
detriment to Samuel, a powerful indicator the court believed
setting aside the jurisdiction findings and dismissing the
dependency petition pursuant to section 390 would not be in
Samuel’s best interests. Nonetheless, the court denied the
petition solely on an incorrect procedural ground. Rather than
speculate as to the juvenile court’s evaluation of the sufficiency of
the showing made by Patricia in her petition, we remand so the
juvenile court may make that determination in the first
5 A contested 18-month review hearing (§ 366.22), currently
scheduled for September 14, 2020, will undoubtedly address
most, if not all, the issues Patricia raises in her section 388
petition. Nonetheless, as long as Patricia seeks to proceed with
her section 388 petition, the court must address its sufficiency
and hold a hearing on the merits if it finds the requisite
prima facie showing has been made.

Outcome: The juvenile court’s October 3, 2019 order summarily denying Patricia’s section 388 petition is reversed. On remand, after providing Patricia an opportunity to supplement her petition with more recent information, if she wishes, the juvenile court is to decide whether Patricia has made the required
prima facie showing that terminating dependency jurisdiction would be in Samuel’s best interests. If such a showing has been made, the court is to conduct a hearing on the merits of the petition.

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