Filed 11/26/13 In re E.A. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re E.A., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G048319
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP022277)
         v.
                                                                       OPINION
B.D.,

     Defendant and Appellant.


                   Appeal from orders of the Superior Court of Orange County, Deborah C.

Servino, Judge. Affirmed.

                   Jacob I. Olson, under appointment by the Court of Appeal, for Defendant
and Appellant.

                   Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy

County Counsel, for Plaintiff and Respondent.
                                          *                  *                  *
              B.D. (mother) appeals from the juvenile court’s March 25, 2013 order

denying her Welfare and Institutions Code section 388 petition (all further undesignated

statutory references are to this code), which sought to vacate the court’s May 2012

jurisdictional and dispositional findings. For the reasons expressed below, we affirm.

                                             I

                    FACTS AND PROCEDURAL BACKGROUND

              In a prior opinion (In re E.A. (Feb. 5, 2013, G046996 [nonpub. opn.]), we

upheld the juvenile court’s jurisdictional and dispositional findings concerning E.A., born

in March 1995. (See §§ 300, subds. (b) [failure to protect] & (g) [caretaker absence],

361, subd. (c) [removal from home]). The facts of the case through May 2012 are

recounted in the prior opinion and incorporated here by reference. Suffice it to say, we

held substantial evidence supported the juvenile court’s judgment, including mother’s

admissions she could not control E.A., did not want E.A. to return home because of her

behavior and accusations of abuse, that “it [was] best to let go since E[.A.] does not want

to come back,” and mother’s statements on the eve of trial reiterating she did not want

E.A. returned to her care.

              In March 2013, the Orange County Social Services Agency (SSA)
recommended terminating dependency jurisdiction because E.A. had turned 18 years old

and did not wish to remain a dependent of the court. On the day of the termination

hearing, mother filed a section 388 petition seeking an order vacating the jurisdictional

findings, claiming SSA possessed information that undermined E.A.’s credibility. At the

hearing, mother also made a motion to dismiss the case and to vacate the dispositional

findings. (§ 385.) On March 25, 2013, the juvenile court denied mother’s section 388




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petition and her oral section 385 motion. The court adopted SSA’s recommendation and

terminated dependency proceedings.

                                              II

                                       DISCUSSION

A.   The Appeal is Not Moot

              SSA contends the appeal is moot. It argues E.A. is no longer a dependent

of the juvenile court and this court therefore cannot grant mother any effective relief.

(See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [when an event occurs

which renders it impossible for appellate court to grant appellant effective relief the court

will not proceed to a formal judgment but will dismiss the appeal]; People v. Gregerson

(2011) 202 Cal.App.4th 306, 321.) Mother counters “the [] order dismissing the

dependency is not synonymous with a court order vacating jurisdictional findings” and

she is prejudiced by “erroneously sustained jurisdictional findings . . . for several

reasons,” including potential liability for the costs of supporting E.A. during her

placement (§ 903, subd. (a)), the inability to have her name removed from the Child

Abuse Central Index (see Pen. Code, § 11169), and the possibility the allegedly false

findings could prejudice her if she is involved in future juvenile court proceedings
concerning her three younger children. Mother has articulated several reasons why

erroneously sustained jurisdictional findings could negatively affect her. If reversal of

the juvenile court’s order denying mother’s section 388 petition could result in an order

vacating the jurisdictional findings the appeal would not be moot.




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B.   The Juvenile Court Did Not Abuse Its Discretion in Denying Mother’s Section 388

Petition Without a Hearing

               Mother contends she presented new evidence in her section 388 petition

amounting to a prima facie showing that information supplied by E.A. in “support [of]

the jurisdictional allegations was wholly unreliable.” Section 388, subdivision (a),

provides in relevant part “[a]ny parent . . . 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.” Section

388, subdivision (d) provides, “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

. . . .” (See Cal. Rules of Court, rule 5.570 [petition must be liberally construed in favor

of its sufficiency].)

               A change of order presupposes a change of circumstances. Thus, “[a]

juvenile court order may be changed, modified or set aside under section 388 if the

petitioner establishes by a preponderance of the evidence that (1) new evidence or

changed circumstances exist and (2) the proposed change would promote the best
interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A parent

“need only make a prima facie showing of these elements to trigger the right to a

hearing.” (Ibid.) The “prima facie requirement is not met unless the facts alleged . . .

would sustain a favorable decision on the petition.” (Ibid.; see In re Alexis W. (1999) 71

Cal.App.4th 28, 36 [party seeking modification bears the burden to show the proposed

change in circumstances would be in the child’s best interests].) On appeal from denial

of a modification petition, the reviewing court will not disturb the juvenile court’s



                                               4
decision unless the court has exceeded the limits of legal discretion by making an

arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994)

7 Cal.4th 295, 318.)

              In sustaining the amended section 300 petition, the juvenile court found

E.A. had suffered or there was a substantial risk she would suffer serious physical harm

or illness from mother’s failure or inability to supervise or protect her. Specifically, the

court sustained allegations that on at least two occasions between summer 2011 and

March 2012 mother slapped E.A. in the face and pulled her hair, mother yelled and

cursed and called the child a “bitch” when angry, and she disciplined E.A. with a belt in

2007 and 2009. The court also sustained allegations that mother lacked insight into

appropriate parenting techniques and her anger problems, mother refused to seek

additional services after her prior attempts to control E.A.’s volatile behavior through

faith-based counseling and other programs had been unsuccessful, and the child was at

substantial risk of physical and emotional harm. Finally, the court found E.A. refused to

return to mother’s care because of physical and emotional abuse, and mother declared she

was unwilling to care for E.A.

              Mother contends no witnesses or physical evidence corroborated E.A.’s
claims of physical or verbal abuse. She noted that following the disposition hearing in

May 2012, E.A.’s “negative behavior continued to spiral out of control. [She] repeatedly

ran away[], exhibited severe and rapid mood swings, and abused illegal drugs and

alcohol. [] [She] caused drama in her placements and engaged in destructive,

counterproductive [] relationships, which included temper tantrums, defiance,

oppositional behavior, and irrational thoughts. [] [She] was also aggressive and




                                              5
assaultive towards [mother] and her younger siblings [], and [E.A.] engaged in domestic

violence with her boyfriend.”

              Mother contends evidence arising after May 2012 undermined E.A.’s

testimonial credibility and the court’s sustained findings. Mother cites an August 31,

2012 incident where a cottage supervisor at Orangewood Children’s Home confronted

E.A. about an e-mail E.A. had sent. The supervisor told E.A. to “stop acting out the

characters in her books and making her mom look like the bad guy. [E.A.] froze and

appeared shocked. She asked [the worker] who told her she did that. The child did not

deny doing this and laughed and agreed she needed to stop making her mom look bad and

stated she needed help. Child was counseled in the matter and she then returned to her

reading book.”

              Mother also relies on a September 2012 observation by one of E.A.’s

therapists, who stated E.A. “‘overdramatizes and catastophises [sic] to fit whatever

agenda she may have in her head.’” The therapist also stated “the child ‘is always

anxious and stressing out about something’ . . . [and] ‘this is part of the drama and

insatiable need for attention . . . .’” In November 2012, E.A.’s Orangewood cottage

supervisor reported E.A. was “displaying disrespectful behaviors and is using threats
toward the mother. For example, she stated, ‘I will call the cops and lie again.’” Mother

also cites the social worker’s statement in a December 12, 2012 addendum report that

“due to the fact that [E.A.] will be 18 on March 22, 2012, and that there is not [sic] basis

of abuse to legitimize removing the child from her mother’s custody the undersigned is

recommending a case plan of Family Maintenance.”

              In February 2013, the social worker included a police report describing a

January 6, 2013 domestic dispute between E.A. and her mother. The child reported



                                              6
“mother slapped her two times on the face and pulled her hair two times,” but the officer

noted the child had no visible injuries or redness on her face. Mother reported E.A.

yelled obscenities, broke glasses in the kitchen, and grabbed mother’s face and scratched

her. Because mother had visible injuries on her face, the police took E.A. to juvenile

hall. E.A. admitted she “wants revenge on her mother and [] intends to do malicious acts

against her mother.” After E.A. missed a wraparound meeting and lied about where she

had been, mother complained on March 19, 2013 that “it was the [social worker’s] fault

that [E.A.] is the way she is. That the ‘agency supports her lies’, and . . . why would

[E.A.] change or do what is right when ‘everyone’ supports her lies and bad behavior’.

The mother blamed [SSA] for not protecting her and her children and said that [SSA] is

in error and does not want to admit it because the agency does not want to look bad. . . .

[Mother] said they [her lawyer and the court] won’t listen to me [,] ‘you [the social

worker] have not told the Court about [E.A.’s] lies and how she has hit my son and

disrespected me, and how she said that she lied about being abused, you only write tidbits

of what happens.”

              We have considered the allegedly new evidence in light of the record and

find no basis to conclude the juvenile court abused its discretion in rejecting mother’s
petition. The evidence did not rise to the level of a witness recanting testimony. (In re

Brandon C. (1993) 19 Cal.App.4th 1168, 1171.)1 Nor does mother demonstrate an order

modifying the prior order to vacate the jurisdictional and dispositional findings would

serve E.A.’s best interests. She argues E.A. would “change if everyone [stopped


1       Mother’s section 388 petition also included older e-mails and documents she
claimed should have been introduced at the jurisdictional hearing. This is not new
evidence, and mother does not demonstrate she exercised reasonable diligence to present
this information. In any event, this information does not persuade us the court erred in
denying the section 388 petition.

                                             7
supporting] her lies and bad behavior” and would “realize the consequences of her

actions and the importance of honesty . . . .” But the mother-daughter relationship was

dysfunctional before SSA’s intervention in March 2012. The juvenile court heard

testimony over several days at the jurisdictional and dispositional hearing and sustained

the allegations. Nothing in mother’s rehearing petition undermined the court’s earlier

ruling that returning to mother’s care posed a risk of substantial harm to E.A.. E.A. is no

longer a dependent of the court and there is no indication an order vacating the

jurisdictional findings would have any effect on her. The juvenile court did not err or

abuse its discretion by denying mother’s petition and motion to vacate the prior findings

without an evidentiary hearing. The same analysis applies to mother’s arguments under

section 385 [(“[a]ny order made by the court in the case of any person subject to its

jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet

and proper, subject to such procedural requirements as are imposed by this article”)].

                                            III

                                      DISPOSITION

              The juvenile court’s jurisdictional and dispositional orders are affirmed.




                                                  ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.


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