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

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.

FACTUAL AND PROCEDURAL BACKGROUND

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

1

Statutory references are to this code unless otherwise

stated.

3

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

2

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.”

3

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.].)

4

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

5

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

the

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.

4

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).

6

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

7

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.

DISCUSSION

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

8

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

9

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];

10

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

instance.5

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.

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.