In re Raquel A.

Filed 4/7/10 In re Raquel A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.

Donna Levin, Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Angela A. (mother) seeks custody of her daughter, Raquel A. (minor). According to mother, the juvenile court erred when it denied her Welfare and Institutions Code section 388^[1]petition without a hearing.

We find no error and affirm.

FACTS

The history leading up the minors current placement

In 1997, the Los Angeles County Department of Children and Family Services (Department) received a report that mother might lack the ability to care for her three-year old daughter, the minor. A social worker and Officer Jedd Levin (Officer Levin) visited mothers apartment. Mother was compulsively washing clothes. Her washing machine and dryer were in the living room, which made the apartment hot and humid. The apartment smelled so strongly of ammonia that Officer Levin felt sick. Other than one box of Cream of Wheat, the kitchen contained no food. The minor had a bruise on her shoulder. She was not toilet trained and exhibited a delayed vocabulary. The social worker spoke to mothers brother and learned that mother suffered from schizophrenia. The minor was detained and placed with her maternal grandmother, Ruth A. (Ruth).

At the hearing on the Departments section 300 petition, the juvenile court heard testimony from Officer Levin, mothers psychiatrist Dr. Barry S. Lieberman, Ruth, mother and mothers brother. The juvenile court found that when mother exposed the minor to toxic ammonia fumes, she endangered the minors physical health and safety. Further, mothers failure to accept Dr. Liebermans recommendation to take antipsychotic medication and her failure to receive regular medical follow-ups limited her ability to provide regular care and endangered the minors physical and emotional health and safety. The juvenile court declared the minor a dependent under section 300, subdivision (b).

Ruth was appointed as the minors legal guardian and jurisdiction was eventually terminated. When Ruth died on December 14, 2006, jurisdiction was reinstated. On July 3, 2007, Catherine A. (Catherine), mothers sister, was appointed as the minors new legal guardian.^[2] On October 9, 2007, the juvenile court terminated jurisdiction.

Mothers previous section 388 petitions

In 1998, mother was ordered to complete parent education and psychological counseling, and to take all prescribed medication. Mother enrolled in a parenting class but was dismissed from it because she was too disruptive. Subsequently, mother refused to go to counseling or enroll in a new parenting class. Also, mother refused to meet with the social worker. Reunification services were terminated in May 1999.

On September 22, 1999, mother filed a section 388 petition and requested unmonitored visitation, weekend visits and a 60-day visit or home of parent order. Regarding new evidence or changed circumstances, mother indicated that she had complied with all requirements of the case plan. She submitted a certificate of completion for a parenting class. She also submitted letters from various mental health professionals indicating that she had been going to counseling. Dr. Edward J. Bitter wrote that he had no reason at all to conclude that [mother] would be negligent to or a danger toward [the minor] or anyone else. There is nothing in [mothers] behavior or appearance to suggest to me that she is disinterested, disengaged or irresponsible with regard to the care and protection of [the minor]. But also, Dr. Bitter wrote that mother was not taking any psychiatric medications, her speech became mildly to moderately disorganized when she was feeling anxious, and she did not understand why the minor was detained. When the social worker asked Dr. Bitter for a diagnosis, he appeared confused by the question and said he had to consult his chart. He never provided a diagnosis. The social worker spoke to Dr. Robert A. Japka, a therapist who saw mother on two occasions. He terminated her therapy because the relationship was not workable. During sessions, she was narcissistic and self-absorbed, and she spoke in riddles. Mother did not express any concern or show any empathy regarding the minor. Dr. Japka stated that he was concerned for the minors safety if she was returned to mother. The section 388 petition was denied.

Mother filed another section 388 petition on April 26, 2000, and sought the same relief as before. Dr. Bitter wrote a letter stating that he had seen mother twice since September 21, 1999, and that he had seen her a total of 14 times. He wrote: The most consistent stressor in [mothers] life appears to be her loss of custody over her daughter, [the minor]. [Mother] is very persistent in her efforts to restore custody to herself. She does not believe that she has any emotional or intellectual difficulties which would interfere with her ability to provide responsible care for [the minor] should custody to her be restored.

The Department reported that the social workers last face-to-face contact with mother was on April 29, 1998. It was impossible for the social worker to assess mothers progress. Via telephone, mother reported that she was not taking her medication. When the social worker spoke about the minor, mother seemed unconcerned and changed the subject back to herself. The social worker was unable to obtain a progress report from a therapist. The Department opined that returning the minor to mothers custody would be an extreme risk because mother refused to take medication to help control the symptoms of schizophrenia and refused to be monitored by a psychiatrist.

At the hearing, counsel for the minor said she did not want to live with mother. Also, the minor wanted all visits to remain monitored. The petition was denied on the grounds that mother failed to establish a prima facie case that the requested change would be in the minors best interest.

Mother filed a third section 388 petition on July 5, 2001. She identified the order to be modified as followed: An interception in [Ruths] custody by way of misinformation and false information. The new evidence or changed circumstances was this: Ruth is a compulsive liar, a non-stationary paranoid schizophrenic, bi-polar, opposition disorder, attention deficit disorder which is a threat to the safety and health of [mother] and [the minor]. Mother requested custody of the minor. The section 388 petition was denied without a hearing on the grounds that it was unintelligible.

On January 11, 2007, following Ruths death, mother filed a fourth section 388 petition, requested custody, and opposed placement of the minor with Catherine. The Department reported that mother could not verify that she had completed a parenting class or that she was attending counseling and taking her prescribed medication. Mother refused to provide the name and telephone number of her therapist to the social worker. Eventually, the Department learned that mother was a patient at West Valley Mental Health since August 2005 and had been prescribed medication. But because mother did not sign a release, the social worker could not obtain further information.

Mother filed a fifth section 388 petition. It was denied as duplicative. The fourth section 388 petition was denied on the merits.

In mothers sixth section 388 petition, she stated she was asking for a modification of the order granting legal guardianship to Ruth. In addition, she stated that she had proof of her mental health. The juvenile court denied the petition without a hearing. The juvenile court told mothers counsel: You need to talk to your client and get this down concise because your client is rambling. I cant tell what shes requesting and what new evidence there is. I know there is a problem, but you may have to take care of it.

Mothers latest section 388 petition

In her seventh section 388 petition, mother requested a modification of the October 9, 2007, order granting Catherine temporary guardianship. To identify new evidence or changed circumstances, mother stated: I have a Section 8 apartment now. And [the minor] will have her own bedroom on my new contract when I report that my family size has changed. Mother asked the juvenile court to render to me complete permanent parental custody, legally. Regarding the minors best interests, mother claimed: I have the circumstances, time and energy, and I want to be the one to care for my beloved daughter. [Catherine], or anyone else, does not have these things, nor do they love [the minor] and understand [her] the way I do. The juvenile court denied the petition without hearing because the petition did not state new evidence or a change of circumstances.

This timely appeal followed.

DISCUSSION

I. The applicable law.

A parent may petition the juvenile court to change, modify or set aside any prior order. ( 388.) To obtain a hearing, the parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799.) This means the petition must demonstrate that there is new evidence or a change in circumstances and the requested modification is in the childs best interest. ( 388; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) But [i]f the petition fails to state a change of circumstance or new evidence that may require a change of order . . . , or that the requested modification would promote the best interest of the child, the [juvenile court] may deny the [petition] ex parte. (Cal. Rules of Court, rule 5.570(d).) The denial of a hearing is reviewed for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398.)

II. Mother failed to make a prima facie showing.

Mothers section 388 petition failed to state that she was complying with the case plan by taking the medication prescribed for her schizophrenia and submitting to the care of a psychiatrist. Thus, the petition did not suggest that mother had ameliorated the risk of harm to the minor. We can only conclude the petition therefore failed to state new evidence or a change of circumstances that might require a modification. That mother has moved into a Section 8 apartment is insufficient to establish that a modification would be in the minors best interest. Mothers housing was not the basis for the detention. We conclude that the juvenile court properly exercised its discretion by summarily denying the petition.

DISPOSITION

The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, Acting P. J.

DOI TODD

_______________________________, J.

CHAVEZ

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Mother appealed. We issued In re Raquel A. (Aug. 6, 2008, B200650) [nonpub. opn.] and affirmed the appointment of Catherine as legal guardian.