Filed 1/31/18 In re H.T. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Five-year-old H.T. was declared a ward of the court when her mother Christine T. (Mother) attempted suicide. Mother filed an unverified Welfare and Institutions Code section 388 petition requesting unsupervised visits with grandfather Paul T. (Grandfather), and that Grandfather be allowed to supervise Mother’s visits with H.T. At the hearing on the petition, Grandfather orally joined in Mother’s petition. The court granted the petition, which was supported by the San Mateo Human Services Agency (Agency), and H.T. appeals. We conclude despite some procedural irregularities, the juvenile court did not abuse its discretion in allowing unsupervised visitation with Grandfather, and for Grandfather to supervise Mother’s visits. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

When H.T. was three years old, Mother attempted suicide by taking four Ambien pills with marijuana and stating she wanted to kill herself and H.T. by jumping off a building. On September 19, 2016, the Agency filed a Juvenile Dependency Petition under Welfare and Institutions Code section 300, subsection (b) alleging failure to protect.[1] It alleged H.T. was at risk of serious physical harm due to Mother’s substance abuse and mental health problems. H.T. was taken into custody and placed in a foster home.

The Agency filed a second amended petition on January 20, 2017 changing the allegation to serious emotional damage under section 300, subsection (c).

Grandfather was assessed as an emergency placement because Mother and H.T. lived with Grandfather and he helped care for H.T. ^[2] H.T.’s foster parent informed the social worker that H.T. said Grandfather hit her in the legs with a bat and “e-ha” hurt her anus and “oso” touched her vaginal area. H.T. was unable to have a bowel movement. When interviewed by the social worker, H.T. again stated “So-So” touched her vaginal area. “So-So” is Mother’s boyfriend, Alessandro.[3] H.T. again stated Grandfather hit her in the legs with a pink bat that had 15 holes in it.

On another occasion, when H.T. was being driven to her forensic interview, an Agency staff person witnessed her point to the vaginal area of a Barbie doll and state Grandfather touched her there. She did not disclose any information about abuse during the forensic interview. H.T. was given a pediatric sexual assault examination that found no acute distress. H.T.’s foster mother continued to report H.T. talked about inappropriate conduct by Grandfather.

The Agency sought to move H.T. from her foster home due to the foster parent’s repeated allegations that H.T. had been abused. The Agency concluded it was detrimental to H.T. to be forced to submit to repeated mental and physical examinations. The Agency believed foster mother’s concerns were inconsistent with the medical evidence. On November 30, 2016, H.T.’s counsel filed a petition requesting H.T. not be moved without a hearing. H.T.’s counsel pointed out the foster parent had cared for more than 55 children over 15 years without a single complaint. H.T. had made statements about abuse to the social worker and Agency staff as well. There was also evidence of physical abuse including bruising on H.T.’s legs, urinary retention, and inflammation and swelling in the vaginal area. The fact the interviews were inconclusive did not rule out the possibility of abuse in a three-year-old child.

On December 6, 2016, the court denied H.T.’s petition. H.T. was moved to a new foster home.

On January 23 and 24, 2017, the court conducted a jurisdictional hearing and found the allegations in the second amended petition to be true. The court also granted Grandfather de facto parent status, over the objection of H.T.’s counsel.[4]

On April 10, 2017, Mother filed a request to change court order (Petition). It stated that since January 2017 when the court ordered supervised visitation for Mother, Mother had regularly engaged in therapy, been compliant with her medication, and both Mother and Grandfather had regularly visited H.T. She requested unsupervised visits for Grandfather and for the court to allow Grandfather to supervise Mother’s visits. Mother argued this would allow the visits to take place in the home in which H.T. had been raised, and to visit with both Mother and Grandfather. The request was signed by Mother’s counsel.

On that same date, Grandfather filed a “Notice of Joinder in Mother’s Motion for Grandfather to Have Unsupervised Visits.”

The Agency filed an interim review report stating that it had “no concerns” about Grandfather’s visitation with the child. H.T. looked forward to visiting with Grandfather and displayed no distress when in his presence. “Allowing [Grandfather] to supervise the mother’s contact with the child would be helpful in supporting the goal of reunification as it will allow the mother to spend more quality time with the child in the home environment.”

On May 2, 2017, the court held a hearing on Mother’s Petition to allow Grandfather to supervise her visits with H.T., and to allow Grandfather to have unsupervised visits with H.T. H.T.’s counsel argued Mother did not have standing to file a petition on behalf of Grandfather for visitation, there was no valid petition before the court, and this objection had been emailed to Mother’s counsel prior to the hearing.

The Agency responded that Grandfather could make an oral motion before the court to clear up any concern or confusion about whose petition it was. The court asked Grandfather’s counsel if she was joining in the Petition or making an oral motion and she said, “I so move, Your Honor.” At which point, H.T.’s counsel called her first witness, social worker Deborah Crandall who was employed by the private defender’s office. Crandall had been a social worker for San Mateo County for 28 years prior to her recent employment with the private defender’s office. Crandall met with H.T. a week prior to the hearing on April 27, 2017. Crandall reported that at the end of the interview, H.T. spontaneously stated her grandfather hurt her. When Crandall asked how he hurt her, H.T. “motioned with her hands by hitting them together several times and saying, ‘He hits me.’ ” H.T. said he hit her on the hands and she also pointed to her temples. Earlier in the interview, H.T. stated that she thought Grandfather was “mean.”

H.T. expressed she liked the visits with her Grandfather at the visitation center. Crandall explained the visits in a supervised setting may be different than in the home. In response, the court stated: “I certainly believe what you’re saying, that H[.T.] said what you said. I don’t doubt that. But in the other reports here, the visitation reports, it looks like H[.T.] was warm and responsive to her grandfather.” Crandall stated H.T. had love and affection for Grandfather but there also seemed to be some conflict. She recommended play therapy to learn what H.T.’s experiences had been. A trained clinician would be able to advise the court if there were concerns about Grandfather or Mother.

Next, H.T.’s counsel requested to cross-examine the current social worker, Knar Kahkejian. Kahkejian stated that based on her review of the case file, there were disclosures of abuse by Grandfather to the Agency staff.

H.T.’s counsel argued H.T. should receive therapy prior to moving to unsupervised visits with Grandfather. Given the potential H.T. could have been abused while in Grandfather’s care, there were serious concerns with unsupervised visits. The court stated it believed Crandall’s testimony, including her statement of what H.T. had told her, but the visitation records were positive. In response, counsel argued supervised visits in a controlled environment do not indicate whether abuse occurred, since abuse occurs in private. Counsel commended Mother’s progress and agreed her visits could be moved to delegation as long as Grandfather was not the one supervising the visits. Counsel requested supervised visits for Grandfather.

Mother’s attorney argued H.T. made one random statement about abuse by Grandfather at the end of her meeting, and this should not outweigh the successful visits with Grandfather and Mother. Grandfather’s attorney requested unsupervised visits and stated “one little statement [not] made again should [not] overrule everything that the Court has already decided . . . . ”

The Agency argued the reunification process was on track for this child. Counsel argued about the strong relationship H.T. had with Mother and the good track record for visitation. H.T. had not disclosed abuse to Mother.

After hearing argument, the court stated: “I completely believe the testimony of Ms. Crandall . . . . But it doesn’t in my mind change the path this case is on. It is a small factor, but we have the numerous supervised visitation reports. And at this point despite the fact we aren’t a hundred percent sure of things I think we have to progress in the direction we’ve been going. [¶] . . . [v]isitations aren’t perfect . . . [b]ut they’re a reasonable test.” The court then ordered additional therapy for H.T. Mother’s visits with H.T. would be monitored by Grandfather and Grandfather’s visits were to be unsupervised.

III.

DISCUSSION

A.Mother’s Unverified Petition and Grandfather’s Oral Joinder for a Change in Visitation[5]

Grandfather’s oral request was to join in Mother’s Petition seeking changes to the court’s visitation order. Mother sought unsupervised visits for Grandfather and to have Grandfather supervise Mother’s visits with H.T. On appeal H.T. argues that the court erred in allowing Grandfather to make an oral request under section 388 regarding visitation. Her counsel asserts that section 388 petitions must be in writing and verified. Because Grandfather’s oral motion was not verified and Mother’s written Petition was also unverified, the Petition should not have been heard or granted.

In support of this argument, H.T. cites to In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609. But In re Baby Boy L. addressed the narrow issue of whether a court is required to entertain an oral motion under section 388 at the time set for a section 366.26 hearing. Our Supreme Court has determined without statutory procedures, including a written section 388 petition, “there would be nothing to preclude a parent from appearing at a section 366.26 hearing and, without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Mother’s Petition here was not made in conjunction with a section 366.26 hearing, and the juvenile court scheduled a hearing solely to decide the visitation issue that was raised in Mother’s written Petition and Grandfather’s joinder.

Although H.T. stresses the invalidity of Grandfather’s oral joinder in Mother’s Petition, Grandfather’s joinder was not necessary for the court to rule on Mother’s Petition because the Court could and did rely on Mother’s written Petition (on the same grounds). The issue then becomes whether Mother’s Petition was valid.[6]

Under section 388, subdivision (a)(1): “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified . . . .” (§ 388, subd. (a)(1), italics added.)

California Rules of Court, rule 5.570(a) also provides that “[t]he petition must be verified” but also states “[a] petition for modification must be liberally construed in favor of its sufficiency.” Neither section 388, subdivision (a) nor California Rules of Court, rule 5.570(a) expressly requires that a section 388 petition be verified by either the petitioner or parent.

Here, Mother failed to sign the petition and her attorney failed to set forth in her declaration any reason why Mother did not verify it. H.T., however, did not argue in the trial court the issue concerning Mother’s lack of verification. At the hearing, H.T. raised two objections: (1) Mother did not have standing to request visitation for Grandfather, and (2) Grandfather had not filed a valid motion and could not orally join in Mother’s Petition. H.T. did not object that Mother’s petition was unverified.

Having failed to object on this basis before the trial court, H.T. has waived the pleading error. (Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761 [“Plaintiff waived any objection to defendants’ failure to verify their answer when she failed to object to the lack of verification prior to trial.”].)

Even if Mother’s Petition was invalid for lack of verification, the Agency argues the court could have changed the visitation order of its own accord without the request, and therefore, any error was harmless. Under section 362, subdivision (a), “the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child” and under section 362.1, the court may order visitation consistent with the well-being of the child and to promote reunification.

H.T. argues the error was not harmless because she was denied due process. H.T. claims when she appeared for the May 2, 2017 hearing, “she was under the impression the hearing was a hearing on Mother’s 388 petition, in which Grandfather joined,” and she was not given proper notice of Grandfather’s motion. We fail to see the difference. Grandfather’s joinder and/or petition were identical to Mother’s Petition—both requested unsupervised visitation for Grandfather and for Grandfather to supervise Mother’s visits. Furthermore, H.T. did have notice of Grandfather’s intention to join in Mother’s Petition prior to the hearing. While H.T. argues she was deprived of due process because she did not prepare for Grandfather’s oral motion, she fails to articulate what she might have done differently, given the issues and evidence were the same. H.T.’s counsel came prepared with a witness and went forward with an evidentiary hearing. Therefore, even if it was error for the court to allow Grandfather’s oral joinder at the hearing on Mother’s Petition, H.T. was not prejudiced.

Finally, we note that the juvenile court seemed unconcerned with the procedural abnormalities surrounding the Petition and addressed the issue on the merits hearing testimony from Ms. Crandall and Ms. Kahkejian. We, therefore, consider whether Mother met her burden to show that unsupervised visits with Grandfather and Grandfather’s supervision of her visits were in H.T.’s best interest.

B.The Juvenile Court Did Not Abuse its Discretion by Ordering Unsupervised Visitation

H.T. argues Mother failed to demonstrate unsupervised visits with Grandfather were in H.T.’s best interest.

Whether to grant a section 388 petition “is ‘committed to the sound discretion of the juvenile court, and [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] An abuse of discretion occurs when the juvenile court has exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. [Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).)

The parties differ over whether Mother’s Petition had to be supported by preponderance of the evidence, or by clear and convincing evidence. H.T. argues under section 388, subdivision (a)(2), Mother had to demonstrate by clear and convincing evidence that a change in visitation was in H.T.’s best interest. The Agency argues, under the same section, that the standard is preponderance of the evidence. The Agency is correct because this case does not involve the limited subsections listed for proof by clear and convincing evidence. (See § 361.5, subds. (b)(4), (5), (6).)

“Section 388 allows interested parties to petition for a hearing to change or set aside a prior court order on the grounds of ‘change of circumstances or new evidence.’ (§ 388, subd. (a)(1).) The burden of proof at any such hearing is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child.” (In re D.B. (2013) 217 Cal.App.4th 1080, 1089, fn. omitted; Stephanie M., supra, 7 Cal.4th at p. 317.)

H.T. argues Mother failed to demonstrate that unsupervised visits with Grandfather were in H.T.’s best interest. H.T. had made allegations Grandfather hit her and touched her. One week prior to the hearing, she told Ms. Crandall that Grandfather was “mean” and hit her. Social worker Kahkejian testified H.T. had made disclosures of abuse by Grandfather to other Agency staff. H.T.’s counsel argued below for play therapy and further investigation before the visits were unsupervised.

H.T. argues the fact H.T.’s supervised visits were going well with Mother and Grandfather did not provide evidence that unsupervised visits were appropriate because Grandfather would not abuse H.T. in a supervised setting. While this is true, the evidence before the court was that sexual assault exam was “unremarkable” and H.T. was not in “acute distress.” H.T. also made no disclosures of abuse during two forensic interviews, and there was no physical evidence of abuse. The Agency reported the visits between Mother and H.T. and Grandfather and H.T. were going well and H.T. exhibited a healthy attachment to Grandfather. Because the allegations of sexual abuse were not substantiated, the Agency had “no concerns” about unsupervised visitation or allowing Grandfather to supervise Mother’s visits.

The juvenile court stated Ms. Crandall was a credible witness and it believed that H.T. made the statements to her, but it did not “change the path the case is on.” The court concluded despite the fact it was not “a hundred percent sure of things” that the case should progress in the direction of reunification.

H.T. argues Mother offered no evidence as to why Grandfather’s visits had to be unsupervised to further reunification between Mother and H.T. Mother, however, requested Grandfather supervise her visits with H.T. to allow them “to visit in the home [H.T.] was raised in, and begin the transition towards return of the child to the home.”

The Agency asserts that mother and Grandfather seek to raise H.T. together in the family home so unsupervised visits in the home are in H.T.’s best interest. Successful reunification between Mother and H.T. is more likely with Grandfather’s support. The next step in the reunification process is unsupervised visitation.

Given the deferential standard of review, we cannot conclude the juvenile court abused its discretion in ordering unsupervised visits for Grandfather. While the more cautious course of action would have been to continue supervised visits for both Mother and Grandfather while H.T. engaged in play therapy, the juvenile court relied on the Agency’s recommendation as well as the evidence regarding the success of the supervised visits to date.[7] The record before this court does not include the hearing transcripts or documentation regarding the investigation into Grandfather’s alleged abuse of H.T. From the medical evidence in the record, H.T.’s examinations did not find sexual abuse, but there was presumably an ongoing investigation into the claims of physical abuse. The Agency argues the juvenile court will continue to reassess its visitation orders at further hearings and if new information is provided regarding abuse, the court can alter visitation.

While the record on appeal is less than complete, based upon the record before us, the juvenile court did not exceed the “bounds of reason” by “making an arbitrary, capricious or patently absurd determination.” (Stephanie M., supra, 7 Cal.4th at pp. 318–319.)

IV.

DISPOSITION

The juvenile court’s order is affirmed.

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RUVOLO, P. J.

We concur:

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REARDON, J.

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STREETER, J.

A151235, In re H.T.