NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD16-3352)
Mother appeals the summary denial of her Welfare and Institutions Code section 388 petition which sought unsupervised visitation with her 14-year-old daughter and her 12-year-old twin sons or, in the alternative, visitation supervised by a relative. We find no error and affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural History
On December 5, 2016, the San Francisco Human Services Agency (agency) filed a juvenile dependency petition alleging, under subdivision (b)(1) of section 300, that the parents were unable or unwilling to supervise or protect the children. When the petition was filed, the children had been living with their father and his girlfriend and had court-ordered supervised visitation with mother.
An amended petition was filed in February 2017, alleging that mother has an extensive child welfare history, including two cases in which she did not reunify with her children, and that mother has a history of mental health, anger management and substance abuse issues and her failure to make substantive progress in treatment has led to the requirement that her visits be supervised. The agency's jurisdictional and dispositional report recommended bypassing reunification services for mother. The report details mother's continued disregard for the visitation rules, her denial of any need to attend therapy, and her failure to complete a substance abuse assessment.
At the contested jurisdictional and dispositional hearing on April 26, 2017, mother submitted on the allegations of the amended petition and the court bypassed reunification services for mother. The court took judicial notice of the findings and orders in the previous cases and found that mother had failed to reunify and that it would not be in the children's best interests to reunify based on the reports in this case and the findings and orders in the prior cases. The children were placed in the home of their paternal relatives. The court ordered clinically supervised visitation to occur every other week, and the agency was given discretion to move to less restrictive visits, to be supervised by a maternal relative.
In September 2017, mother filed a section 388 petition seeking reunification services with regard to her daughter after her placement was changed. The court summarily denied mother's motion and the order was affirmed on appeal. (In re A.M. (April 12, 2018, A153066) [nonpub. opn.].)
The six-month review hearing was conducted on October 26, 2017. The agency's report submitted in advance of the hearing states that the sons remained in their placement with their paternal aunt and that the daughter had been placed with maternal relatives. The agency expressed continued concern about mother's behavior. She had recently purchased a dog for the sons without prior approval by their caregivers, then lied about the dog being a favor for a terminally ill friend. Mother had failed to adhere to the supervised contact rule, "leading minors [to] feel pressured and refusing telephone contact or visitation" with her. Mother's "impulsive and negative behaviors" have increased and she had constructed a "plan to have unsupervised contact with her children without the approval of the [agency]." Her actions continued to increase anxiety for the sons and interfered with the daughter's placements. Mother continued to deny that there were any problems with her parenting and has been "resistant to being forthcoming of her unsupervised contact with her minor children."
At the hearing, the court adopted the agency's recommendation of continued out-of-home placement and continued the case to the 12-month review. The court modified mother's visitation from therapeutic to professionally supervised by the Seneca program and further ordered that her visits could be up to three hours and could occur in the community, subject to Seneca's availability. Mother's request for makeup visitation was denied, but the agency was provided the discretion to arrange for visitation during the holidays.
On November 30, 2017, mother filed a section 388 petition seeking to modify the court's visitation orders. Mother sought unsupervised visitation and an overnight Christmas visit. In the alternative, mother asked that her visitation be supervised by her daughter's current caretaker. Mother's petition offers the following allegations of changed circumstances in support of her petition: "Mother has had supervised visits at a visiting center. No problems have arisen. No safety concerns have manifested. Mother continues with her own individual therapy. Mother completed a parenting class in October 2017." The petition alleged that the requested modification would be in the children's interest because "[t]he brothers ask mother if they can see her more often [and] for longer [times]. . . . Mother would facilitate ongoing contact with many maternal relatives who are kept from the children currently."
The section 388 petition was set for a hearing on December 14, 2017. At the hearing, mother argued that the children were old enough to have an opinion about visitation and that her daughter had asked for unsupervised visitation. Minors' counsel disputed that mother's claim that the daughter wanted unsupervised contact with her mother, but stated that the daughter "does believe that visits supervised by her caregiver, . . . who is mother's niece, would be adequately protected. And that is what happened over Thanksgiving." Both minors' counsel and the agency argued, however, that the court should summarily deny the petition because mother had not established a change in circumstance since the current visitation order was entered or a showing that the modification was in the best interest of the children.
The court summarily denied the petition, noting that there was not sufficient allegations of changed circumstances to warrant an evidentiary hearing. The court observed that the current order was entered only six weeks earlier and that mother had made no additional progress in that time. The court also indicated that if additional progress was made, she would welcome another motion.
Mother filed a timely notice of appeal.
"Under section 388, a parent may petition to modify a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. [Citation.] 'Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests.' [Citation.] [¶] 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 61-62.)
The court correctly observed that the petition failed to allege changed circumstances sufficient to warrant a change in the visitation order entered just six weeks earlier. As this court noted in our prior opinion, "The case file contains a detailed account of mother's mental health, anger management and substance abuse issues that have prevented her from previously reunifying with her children and have resulted in the requirement that her visits be supervised." (In re A.M. (April 12, 2018, A153066) [nonpub. opn.].) Over the course of the proceedings, the court has carefully evaluated and lessened the restrictions placed on visitations. As of the October order, the court had vested the agency with the discretion to allow for visitation in the community, rather than in a therapeutic setting, and to permit visitation supervised by maternal relatives. It appears from the record that such visitation occurred over the Thanksgiving holiday. Mother's petition failed to allege any change in circumstances that supported reconsideration of that order. Accordingly, the court did not abuse its discretion in summarily denying her petition.
The order is affirmed.
Pollak, Acting P.J. We concur: Jenkins, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------