In re Sarah L.
Filed 4/13/06 In re Sarah L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re SARAH L., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TRACY L., Defendant and Appellant. | D047474 (Super. Ct. No. EJ2381) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.
Sarah L., then six years old, was declared a dependent of the juvenile court after authorities learned that pornographic photographs of her existed. (Welf. & Inst. Code, § 300, subd. (d).)[1] After 12 months of reunification services, the court placed Sarah with her mother, Tracy L. Six months later, the court found there was no longer a protective issue, awarded custody to Tracy and terminated dependency jurisdiction. The court also summarily denied Tracy's section 388 petition to modify the original dependency petition to remove allegations that she sexually abused or exploited Sarah.
Tracy appeals, contending the court abused its discretion by denying an evidentiary hearing on her section 388 petition.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2004, a Wal-Mart store employee contacted the child abuse hotline and reported that Sarah's father, Carl L., had dropped off several rolls of film to be developed that contained photographs of Sarah and her friend, Alyssa H., with their vaginas and buttocks exposed.[2]
A social worker from the San Diego County Health and Human Services Agency (Agency) accompanied a sheriff's detective to the family residence to investigate the referral concerning sexual exploitation of a child. The social worker interviewed Tracy, who remained calm and unemotional when told that Sarah and another girl were in pornographic photographs. The social worker reported that Tracy did not appear concerned that her daughter was in these photographs. Tracy denied taking the photographs and did not believe Carl had done so even though the photographs had been taken in the master bathroom of their home. Before the social worker identified the other girl in the photographs, Tracy said, "Sarah or Alyssa could have been taking pictures of themselves. I gave Sarah a camera of her own." The social worker noted that this explanation did not take into account the fact that both girls were in some of the photographs.
The detective interviewed Alyssa, who identified Tracy as the one who took the photographs. During her interview, Sarah said she did not remember being photographed.
During a search of the residence, pornographic cartoons, including some depicting children, were found. Sarah was taken into protective custody.
The court ordered Sarah detained in out-of-home care and prohibited Tracy and Carl from visiting her until Agency and law enforcement investigations were completed. Tracy began participating in her case plan two days after Sarah was detained.
On January 7, 2004, Agency filed a dependency petition on behalf of Sarah, alleging she had been sexually abused or there was a substantial risk she would be sexually abused by her parent or a member of her household. (§ 300, subd. (d).) The petition specified:
"On or about and between December 2003 to present the child's parents, Tracy [L.] and Carl [L.] . . . sexually abused said child, including taking pictures of the child and another six year old child . . . in which the girls are spreading their labia and butt cheeks exposing the children's vaginas and anuses."
On February 23, 2004, Tracy denied the allegations of the petition and objected to jurisdiction, but did not cross-examine the social worker or present affirmative evidence. The court sustained the petition and declared Sarah a dependent child, removed physical custody from the parents, placed Sarah in foster care, and ordered services. Neither parent appealed.
Sarah began individual therapy in February 2004. She told her therapist that her parents argued and spanked her with a "patty whacker." Sarah also said Carl had let her drink beer; Carl denied this.
Tracy separated from Carl and lived with the maternal grandmother. Tracy was employed and actively working on her case plan. She completed a parenting course and underwent a psychological evaluation, which found she did not fit the profile of an abusive parent. Tracy's therapist reported she was making progress. Tracy also was participating in a sexual offender's treatment group; the counselor "questioned whether [Tracy] actually took the pictures of her daughter."
In early July 2004, the social worker assessed the risk to Sarah if she were returned to her parents as high. The social worker noted that Sarah had joined Alyssa in claiming Tracy had taken the pornographic photographs, and Carl continued to maintain his innocence as well as Tracy's innocence.
On July 17, 2004, Sarah told her foster mother that she and Alyssa had taken the photographs of themselves while her parents were visiting a neighbor.
At the six-month review hearing on August 25, 2004, the court found returning Sarah to parental custody would be detrimental and reasonable services had been provided. The court continued Sarah's foster care placement and ordered six more months of services for the parents.
In November 2004, Agency requested a psychological evaluation of Sarah after she began exhibiting sexualized behavior and making sexual comments at her foster home. Also in November, Sarah told her therapist that Carl instructed her to sit on the toilet in his bathroom while he showered and sometimes told her to help him dry off.
The social worker reported that Sarah behaved inappropriately during visits with Carl. Among other things, Sarah bounced on the couch, climbed on Carl's neck, and got down on her hands and knees and barked like a dog. Once Carl left the room, Sarah's behavior improved.
In December 2004, Sarah told her therapist that she and Carl had a secret, which she was not allowed to tell anyone.
In January 2005, Sarah was returned to Tracy on a trial basis. The trial visit went well, and the following month Agency recommended Sarah be placed with Tracy. Tracy had purchased a mobile home and Sarah adjusted well to living again with Tracy.
Meanwhile, Sarah had begun to make disclosures in therapy of secrets Carl had asked her to keep. Sarah wrote down eight secrets, including Carl taking drugs and making Sarah touch his private parts. Sarah also said Carl instructed her to lie in bed with him and touch his penis. Sarah's therapist recommended that Sarah's supervised visits with Carl be suspended pending further investigation of Sarah's disclosures. The social worker also noted that visitation monitors said Carl was displaying strange behavior during visits with Sarah. Carl touched Sarah in an inappropriate, but not necessarily sexual manner, according to the visitation logs. For example, Carl hovered over Sarah and rubbed her feet in an "overly genteel" manner. Also, Carl constantly stared at Sarah and fixated his eyes on her in a manner that prompted the monitor to telephone the social worker.
Psychologist Christopher Carstens, who evaluated Sarah in January 2005, diagnosed her as suffering from post-traumatic stress disorder, and recommended she continue in individual therapy. During the evaluation, Sarah said Tracy and Carl jointly allowed her to drink beer.
At the 12-month review hearing on February 25, 2005, the court placed Sarah with Tracy and continued services. The court terminated services for Carl and issued a temporary restraining order against him. The court also suspended all visits between Carl and Sarah.
Sarah's sexual acting-out behavior stopped after the court ordered no contact with Carl.
Tracy successfully completed her case plan. Agency recommended sole physical custody be awarded to Tracy and juvenile court jurisdiction be terminated. The social worker noted Sarah would continue to receive therapy through the Victims of Crime Fund if the case were to close.
On August 18, 2005,Tracy filed a petition under section 388 requesting modification of the true finding under section 300, subdivision (d), as to her and the addition of a section 300, subdivision (b) allegation relating to her. The basis for the petition was that during the dependency Sarah had revealed (1) she and Alyssa had taken the pornographic photographs of each other, and (2) Carl had sexually abused her and told her to keep it a secret.
On September 8, 2005, the court denied an evidentiary hearing on Tracy's section 388 hearing. The court found there was no longer a protective issue, awarded sole legal and physical custody to Tracy, and terminated jurisdiction.
DISCUSSION
Tracy contends the juvenile court abused it discretion in denying her an evidentiary hearing on her section 388 petition because she made a prima facie showing of changed circumstances and best interests. The contention is without merit.
Section 388 provides that a parent may petition the court for a hearing to change, modify or set aside any previously made order of the court on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is "in the best interest of the dependent child." (§ 388, subd. (b).) Section 388 goes on to state: "If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (c).)
However, if the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 1432(b).)[3] The parent must make a prima facie showing to trigger the right to a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The petitioner's burden includes making a prima facie showing that the requested change would promote the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
Appellate cases have recognized that section 388 is an appropriate means to raise new evidence concerning jurisdiction after a child has been declared a dependent. (In re Brandon C. (1993) 19 Cal.App.4th 1168, 1170-1171 [appropriate to use section 388 petition to address witness's recantation of allegation underlying jurisdiction]; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 483-484 [appropriate to use section 388 petition to attack jurisdiction based on notice defects].) As our Supreme Court has recognized, among the "[s]ignificant safeguards [that] have been built into the current dependency scheme [is a parent's] continuing right to petition the court for a modification of any of its orders based upon changed circumstances or new evidence pursuant to section 388." (In re Marilyn H., supra, Cal.4th at pp. 307-309.)
The Court of Appeal in In re Brandon C., supra, 19 Cal.App.4th at page 1173 held a petition under section 388 is the appropriate vehicle by which to bring a recantation of sexual abuse charges to the attention of the juvenile court. However, the Court of Appeal cautioned: "[W]e do not mean to imply that recantation by a victim or witness in a sexual abuse case will always constitute 'new evidence' for purposes of section 388, or that an evidentiary hearing will be warranted in every such case. Nor do we mean to imply that a mere showing of 'recantation' will justify modifying or setting aside the juvenile court's jurisdictional and dispositional orders." (Id. at p. 1172.) This is a case-by-case determination in which the juvenile court must determine whether the petitioner has presented a change of circumstance or new evidence and whether the petitioner has made a prima facie showing that " the best interests of the child may be promoted by the proposed change of order.' [Citations.]" (Ibid.)
A juvenile court has extremely broad discretion in deciding whether to grant an evidentiary hearing on section 388 petitions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 805-808.) A juvenile court's ruling on a section 388 petition should not be reversed absent an " ' ". . . arbitrary, capricious, or patently absurd determination . . . ." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
On this record, we find no abuse of discretion. The juvenile court properly could conclude Tracy's section 388 petition did not set forth the requisite prima facie showings for an evidentiary hearing that could lead to a modification of the jurisdictional finding under section 300, subdivision (d).
As new evidence, Tracy alleged: "(1) [Sarah] has divulged that her father sexually abused her and told her to keep it a secret from her mother and others. (2) [Sarah] has divulged that she and another minor took nude pictures of each other. (3) [Sarah] is placed with [Tracy]."
Even though Sarah revealed that she and Alyssa had taken the nude photographs, Alyssa did not recant her statement that Tracy was the photographer. We also note that Tracy did not volunteer any explanation for the pornographic cartoons found in the family home. Nor did Tracy disapprove of Sarah's drinking beer, which is often a precursor to molestation.
Moreover, Sarah's disclosure that Carl had been sexually abusing her for an unknown period of time strengthened - not weakened - the factual basis for the finding that Sarah was properly within the jurisdiction of the juvenile court under section 300, subdivision (d). In this context, it is important to remember that the purpose of dependency proceedings is to protect and promote the welfare of the child; not to punish the parent. (Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52.) A dependency petition is brought on behalf of the child, not on behalf of the parent. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 598.) It is abundantly clear that the court correctly found Sarah to be in need of the court's protection under section 300, subdivision (d).) Nothing had changed in that regard. The juvenile court is required to order a hearing only if the section 388 petition sets forth a prima facie showing of changed circumstance or new evidence that might require a change of the court's previous order. (Rule 1432(b).) "[T]he change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court, supra, 185 Cal.App.3d at p. 485, italics added.)
Assuming arguendo that Tracy's petition included the requisite prima facie showing of new evidence, she failed to show that the proposed modification was in Sarah's best interest. The petition did not allege why the modification was in Sarah's best interest.[4] Counsel told the court the petition was in Sarah's best interests because she would not have "to go through life with the stigma that the mother - she was placed with [was] sexually abusing her [when] that is not true." We disagree. Tracy's section 388 petition may be in the best interest of Tracy, but there has been no showing that it would benefit Sarah.
Furthermore, as the juvenile court aptly observed, the dependency proceedings were closed and the records in the case are sealed. The court continued:
"Nobody can come into this court and find out what was said. [¶] With regard to stigma, the mother and child have a relationship. The mother and child are going to be in therapy. The mother and child are dealing with these things at a level much deeper than whether or not a blue piece of paper in the file says one thing or another."
In sum, the juvenile court did not abuse its discretion by denying an evidentiary hearing on Tracy's section 388 petition.[5]
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] Carl is not a party to this appeal. He will be discussed only when relevant to the appeal.
[3] All rule references are to the California Rules of Court.
[4] The first page of the section 388 petition used by Tracy's counsel was a form revised and approved in 1999 by the Judicial Council. The second page of the petition was the form adopted by the Judicial Council in 1995. This form did not include a section to explain why the proposed modification would be in the child's best interest. Later versions of the second page form for a section 388 petition, such as the Judicial Council's 2002 revision, include a best interest section.
[5] Tracy's argument that the court denied "an evidentiary hearing essentially because it believed it would be opening up a can of worms" is unfounded. The burden was on Tracy to make a prima facie showing of new evidence and best interest. The court found Tracy had not met her burden; this was the essential reason the court denied an evidentiary hearing. Moreover, the phrase "opening up a can of worms" was used by minor's counsel, not by the court.
