Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court No. CK05607. Marilyn Martinez, Commissioner.
Lori Siegel, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Respondent.
BIGELOW, J.
This appeal arises from a juvenile dependency case. Mother contends the juvenile dependency court erred in denying her petition under Welfare and Institutions Code section 388 without setting the petition for a hearing. We find no reversible error.
All section references are to the Welfare and Institutions Code.
FACTS
A. T.M.’s Birth and Placements with Relatives
B.W., mother, and alleged father, R.M., are the biological parents of T.M., born in November 2001. In January 2002, the Department of Children and Family Services (DCFS) received a referral alleging that mother had been incarcerated in the state prison, and that she had abandoned the care of her infant son to her sister, S.G., who was unable and/or unwilling to provide T.M. with appropriate care. DCFS filed a petition on T.M.’s behalf, and, in May 2002, the dependency court entered jurisdictional and dispositional orders adjudging T.M. a dependent of the court pursuant to section 300, subdivisions (b), (g), and (j). The court found by clear and convincing evidence under section 361.5, subdivisions (b)(10) and (b)(13), that reunification services need not be ordered for mother. By the end of 2002, T.M. was placed with his maternal aunt and uncle, S.W. and T.W. In early 2003, the dependency court entered orders appointing S.W. and T.W. as T.M.’s legal guardians.
In June 2007, DCFS detained T.M. from his guardian relatives, S.W. and T.W., after the social worker became concerned that T.M. was not receiving adequate care. In conjunction with the detention, DCFS filed a section 387 petition for orders approving a placement in the home of a foster caretaker, and a section 388 petition seeking orders rescinding the relatives’ guardianship. In July 2007, the dependency court dismissed the section 387 petition without prejudice, and denied the section 388 petition. In October 2007, DCFS again detained T.M., and, again, filed petitions under section 387 for a placement with a foster caretaker, and under section 388 to rescind the dependency court’s then-existing guardianship orders. This time, T.M.’s removal was requested by his relative guardians because they were no longer willing to care for T.M.
On October 25, 2007, the dependency court entered orders detaining T.M. from his relative guardians, and vesting temporary placement and custody with DCFS. At the same time, the court set a pretrial resolution conference (PRC) for November 27, 2007, on DCFS’s section 387 petition, and set a hearing on DCFS’s section 388 petition for the same date. The court directed DCFS to prepare a report to address termination of the relatives’ guardianship pursuant to the section 388 petition. At about the same time, DCFS placed T.M. with J.D., a nonrelative foster mother.
On November 1, 2007, DCFS served notice of the upcoming PRC on DCFS’s section 387 petition to mother at an address on Harvard Boulevard in Los Angeles. The record before us on mother’s current appeal suggests that mother was, at the time of the purported service of notice of the section 387, still incarcerated in state prison. Mother did not appear in the dependency court on November 27, 2007, but the scheduled hearing did not go forward on that date for other reasons, and the court continued the matter to December 19, 2007. In late November 2007, DCFS sent notice of the continued hearing date to the legal guardians at the address on Harvard Boulevard, but not to mother.
At the hearing on December 19, 2007, the dependency court dismissed DCFS’s section 387 petition without prejudice because “notice [was] not proper.” At the same hearing, the court granted DCFS’s section 388 petition, and terminated the relatives’ legal guardianship over T.M.
B. T.M.’s Foster Care and Mother’s Communications with the Dependency Court
In June 2008, DCFS reported that T.M. was doing well in his foster home, and that his foster caretakers had stated that they wanted to provide T.M. with permanency by way of either a guardianship or adoption. At a review of permanent plan hearing in June 2008, the dependency court continued the matter to September 2008 to allow DCFS an opportunity to file an up-to-date report on T.M.’s status.
Although mother had not been properly served with notice of DCFS’s section 387 petition in late 2007, she received –– in a manner and on a date not ascertainable from the record –– actual notice of the ongoing proceedings in the dependency court regarding the termination of her relatives’ guardianship over T.M. In July 2008, mother wrote from prison to the dependency court, expressing her wish to regain custody of T.M. upon her upcoming release from prison. Mother’s letter requested that T.M. be placed with her niece, L.H., in the event reunification with mother was not possible, and supplied contact information for both L.H. and L.H.’s mother, P.W. Mother requested to be present in court for the hearing which had been scheduled for September.
In July 2008, mother filed –– from prison –– an in pro. per. notice of appeal from the dependency court’s June 2008 orders that had directed DCFS to report on T.M.’s status vis-à-vis his foster caretakers. Mother’s first appeal was dismissed in December 2008 without addressing any claims of error on the merits.
On September 5, 2008, mother wrote from prison to the dependency court again, this time requesting that an attorney be appointed to represent her at the pending hearing scheduled for September 15, 2008, involving T.M. and his foster caretakers. Mother again stated that she did not want her parental rights terminated, and that, in the event reunification was not an alternative, she wanted T.M. to be placed with P.W. and L.H., his paternal aunt and cousin. Mother also requested that the permanent plan hearing regarding T.M. and his foster caretakers be continued to a later date so she could be present, noting that she would be released from prison in October 2008.
At the time of the permanent plan hearing on September 15, 2008, DCFS reported that T.M. had expressed that he was “happy” and felt “safe” with his foster mother. After T.M. had been placed with his foster mother, his relatives did not visit. Although he had special learning and behavioral needs, T.M. was an overall healthy child, and continued to do well with his foster caretakers. Following discussions at that hearing, the dependency court appointed counsel for mother, and continued the permanent plan hearing to November 12, 2008.
C. The November 12, 2008 Hearing and Mother’s Section 388 Petition
On November 12, 2008, mother appeared at the permanent plan hearing then set to address T.M.’s status with his foster caretakers. At that time, DCFS reported that T.M. was relatively healthy, continued in his counseling and therapy, and appeared to be well cared for, comfortable and happy in his foster home. DCFS further informed the court that, although T.M.’s foster caregivers had initially expressed interest in adoption, they had recently requested a legal guardianship with a possible future adoption, in light of the fact that mother was being released from prison, and had expressed a desire to reunify. DCFS recommended that T.M.’s foster mother be given legal guardianship over T.M.
At the hearing on November 12, 2008, mother filed a section 388 petition seeking orders requiring the DCFS to investigate placing T.M. with relatives, and/or directing DCFS to provide reunification services for mother and T.M. Mother alleged that DCFS had violated T.M.’s right to be placed with relatives. In addition, mother indicated that she had not been appointed counsel in T.M.’s case until September 2008, that T.M. had been in the care of relatives until October 2007, and that mother had not been given notice of T.M.’s removal from his relatives’ care. Mother attached documentation to her petition showing she had completed a parenting class and an anger management class, and showing she had attended 13 narcotics anonymous classes.
After listening to argument from mother’s counsel, the court denied mother’s section 388 petition without setting the matter for a contested hearing with witnesses, noting that such a petition was the “wrong vehicle” to attempt to correct any lack of notice error alleged by mother in connection with the 2007 hearings at which the relatives’ guardianship had been terminated. The court denied mother’s request for reunification services, and, at the close of the hearing, entered orders approving a legal guardianship to T.M.’s foster caretakers, and ordered monitored visitation between T.M. and mother. The court then terminated its jurisdiction over T.M.’s case.
Mother filed a timely notice of appeal.
DISCUSSION
I. Mother’s Standing to Appeal the Denial of her Section 388 Petition.
As an initial matter, we must address DCFS’s position that mother lacks standing to raise on appeal any issue related to T.M.’s placement with his foster family, rather than with relatives. Although DCFS is correct that, as a general rule, a parent has no standing to appeal issues which do not affect his or her own rights (see, e.g., In re Devin M. (1997) 58 Cal.App.4th 1538, 1541), we believe the better path in the circumstances presented by mother’s current case is to follow the principles articulated in In re Esperanza C. (2008) 165 Cal.App.4th 1042. In Esperanza, the dependency court entered orders denying a nonrelative placement based on an administrative determination that a proffered relative had a disqualifying criminal record. The dependency court thereafter denied mother’s section 388 petition to change the nonrelative placement. On appeal, Division One of the Fourth District Court of Appeal found the mother had standing to challenge the order denying her section 388 petition. As Esperanza explains, the issue of parental standing in a dependency case should be liberally construed in favor of the right to appeal, and a parent’s interest in the custody, management and care of his or her child should weigh in favor of the right to appeal, provided the issue in dispute arose before parental rights were terminated. (Esperanza, at pp. 1053-1054; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) In the case before us today, mother first raised the issue of a placing T.M. with relatives before the dependency court decided to terminate her parental rights, indeed, the court has never terminated her parental rights, and we decline to foreclose her claims of error on appeal based on a lack of standing.
II. The Dependency Court Properly Denied Mother’s Section 388 Petition
Mother’s section 388 petition in late 2008 alleged that, because she did not receive notice of DCFS’s section 387 petition in late 2007 to dissolve her relatives’ guardianship over T.M., and did not receive notice of the hearings at which the guardianship over T.M. was terminated, she did not know at that time that T.M. was placed with his current foster family. Mother alleged that, because she did not have notice, she did not have an opportunity to provide the dependency court information concerning other relatives with whom she desired T.M. to be placed. Mother implicitly alleged that, had she known about the proceedings in late 2007, T.M. may have been placed with mother’s relatives, not in his foster home, and that the ensuing relative placement may have facilitated her efforts for reunification. Mother then alleged that her circumstances had changed, and justified reunification services. In summary, mother alleged that a “wrongful” placement with nonrelatives, coupled with a showing of her recent efforts to address the problems which led to the dependency court’s intervention in the first instance, supported a change in the court’s then-existing orders, with a new period of reunification services.
On appeal, mother contends the dependency court abused its discretion by denying her section 388 petition without a hearing, given the nature and scope of the showing she made in her petition. Her argument is three-fold: first, she claims her petition showed that her circumstances had changed in that she was no longer incarcerated and had taken the initiative to participate in programs to address her drug and parenting deficiencies; second, she claims she showed that T.M.’s best interests would be served by changing the dependency court’s placement orders; and, third, she claims “due process considerations” further support a change in the court’s orders. We disagree that the dependency court abused its discretion in denying her section 388 petition.
A. Section 388 Petitions
Section 388 authorizes a party who has an interest in a dependent child of the dependency court to petition the court for a hearing to change, modify, or set aside any order previously made. (§ 388, subd. (a).) A party seeking modification bears the burden of making a prima facie showing of two elements: (1) there has been a genuine change of circumstances or new evidence, and that (2) changing or revoking the court’s previous orders would be in the “best interests of the child.” (See, e.g., In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) When a parent’s section 388 petition fails to allege changed circumstances, or fails to explain how the proposed change in the court’s orders would serve the child’s best interests, the court may deny the petition without setting a hearing on the petition. (Cal. Rules of Court, rule 5.570(d).) Unless there has been an abuse of discretion by the dependency court, a reviewing court will not reverse the court’s denial of a section 388 petition. (In re Josiah S. (2002) 102 Cal.App.4th 403, 419.)
B. Mother’s Showing of Changed Circumstances and T.M.’s Best Interests
As noted above, mother’s section 388 petition would not support a change in the dependency court’s prior orders absent a prima facie showing of changed circumstances and that modification of the prior dependency court’s previous orders would be in T.M.’s best interests. Mother’s section 388 petition was supported with evidence of showing she had completed parenting and anger management classes, and that she had been attending narcotics anonymous classes. In addition, mother noted that she had been released from incarceration. Although mother’s petition showed progress, we decline to find that the dependency court abused its discretion, i.e, that it acted unreasonably, in concluding that mother showed only “changing circumstances,” as opposed to “changed circumstances.”
Assuming, however, that mother’s section 388 petition in November 2008 showed a change in circumstances, we decline to find the dependency court abused its discretion, i.e., that it acted unreasonably, in concluding that it would not be in T.M.’s best interest to change his then-existing placement with his foster family, or to order DCFS to provide reunification services to mother. As noted earlier, T.M. is currently happy, healthy, and well cared for by his foster family. Mother was largely a stranger to T.M., and had not seen her son since he was three years old. Mother never took custodial care of T.M. at any time in his life. Because reunification services were not being provided at the time of the section 388 petition, and, in fact, had not been provided for a number of years, the dependency court properly focused on T.M.’s need for stability and permanency.
C. The Relative Placement Issue and T.M.’s Best Interests
Mother’s section 388 petition –– filed in late 2008 –– alleged that the dependency court should have placed T.M. with relatives in late 2007, but she did not show or explain how –– in late 2008 –– it would have been in T.M.’s best interests to change the orders that placed him with his foster family. T.M. was placed in his foster home nearly one year before mother’s petition, and he was doing well with his foster parents at the time of the petition. He was healthy, attended classes and therapy, and stated that he was happy in his foster home. Although T.M. lived with his original relative guardians for about six years, he was neglected and unwanted during that time period. At the time of mother’s section 388 petition, T.M.’s foster family was providing him with proper care and a stable home environment.
D. The Due Process/Notice Factor
The remaining issue, therefore, is whether mother’s due process arguments show grounds for reversing the dependency court’s decision to deny her section 388 petition. In this regard, mother’s section 388 petition essentially posited the proposition that the lack of notice of the dependency court’s proceedings in late 2007 so poisoned the court’s orders that her section 388 petition in late 2008 should have been granted to undo the damage. We are not convinced that this is the required outcome.
In a child dependency proceeding, due process requires that a parent receive notice that is reasonably calculated to apprise him or her of the dependency proceedings, and to afford him or her an opportunity to object. (In re Justice P. (2004) 123 Cal.App.4th 181, 188 (Justice P.).) A section 388 petition is the “proper vehicle to raise a due process challenge based on lack of notice.” (Justice P., at p. 189.) An alleged due process violation, however, is reviewed under the “harmless beyond a reasonable doubt standard of prejudice.” (Id. at p. 193.) As explained in Justice P., at page 192: “[W]e reject the notion that every section 388 petition based on a notice violation merits an evidentiary hearing as a matter of law regardless of whether there is a prima facie showing that the best interests of the child will be promoted.” This is precisely the situation in mother’s current case.
Mother’s section 388 petition in late 2008 did not show that, had she received proper notice of the dependency court’s hearings in late 2007, the result of those hearings would have been different. Mother’s section 388 proffered to the dependency court the abstract allegation that the court could have placed T.M. with relatives in late 2007, but included no showing that there had been any suitable relative who was willing, either in 2007, or at the time of her petition in 2008, to provide T.M. with the care he required. Mother’s abstract allegation in late 2008 that the dependency court could have made different placement orders in late 2007 did not require the court in late 2008 to set her section 388 petition for hearing. More importantly, her abstract contentions on appeal regarding the lack of notice in late 2007 do not persuade us to find prejudice resulting from the dependency’s court’s decision to deny her section 388 petition without a hearing.
In summary, although it would appear the dependency court may have incorrectly believed that mother’s section 388 petition was the “wrong vehicle” to raise a question regarding lack of notice (Justice P., supra, 123 Cal.App.4th at p. 189), mother has not persuaded us that the dependency court’s misunderstanding of the ramifications of the lack of notice of the 2007 hearings was prejudicial under constitutional due process mandates. (Ibid.)
DISPOSITION
The dependency court’s orders are affirmed.
We concur: FLIER, Acting P. J., BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.