Filed 4/30/14 In re A.P. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re A.P. et al., Persons Coming Under the
Juvenile Court Law.


CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU,
         Plaintiff and Respondent,                                   A139885
v.
                                                                     (Contra Costa County Super. Ct.
T.P. et al.,                                                         Nos. J11-00931 & J11-00932)
         Defendants and Appellants.



         The two children of T.P. (Mother) and A.P. (Father) were detained by the Contra
Costa County Children and Family Services Bureau (Agency) on allegations that Mother
failed to protect the children from the effects of Father’s domestic violence and substance
abuse. Two years later, the juvenile court terminated reunification services for the
parents and scheduled a permanency planning hearing. Five days before the permanency
planning hearing, Mother filed a petition to modify the order terminating her
reunification services under Welfare and Institutions Code1 section 388. The juvenile
court summarily denied the section 388 petition solely on the grounds that it was
untimely. We reverse that denial and vacate the order terminating the parental rights of
the parents.
         1
             All further statutory references are to the Welfare and Institutions Code.


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                                      BACKGROUND
       The two children of Mother and Father, four-month-old A.P. and his two-year old-
sister, Z.P. (the children), as well as their half brother D.G., were the subjects of
dependency petitions under section 300, subdivisions (b) and (j), filed June 13, 2011.2
The petitions alleged Father had a substance abuse problem and had engaged in domestic
violence against Mother. He was also alleged to have threatened five-year-old D.G. with
a gun. The children were detained and placed in foster care. In October 2011, Mother
and Father stipulated to the allegations of an amended petition.
       In November 2011, the juvenile court ordered reunification services for the parents
and continued the children in foster care. In a report filed at the time, the Agency stated
that Mother had joined a domestic violence support group and Father had entered a
residential substance abuse treatment program. Since the children’s detention, the
parents had participated in weekly, one-hour supervised visits.
       In April 2012, nearly a year after the children’s detention, they were returned to
Mother’s custody. Although working two jobs, Mother had been trying “diligently,” if
not entirely successfully, to pursue reunification services. Since the November hearing,
Father had maintained his sobriety, and he continued to participate in substance abuse
programs. His weekly supervised visits with the children were reported to be
“appropriate.”
       The Agency filed a supplemental petition in March 2013, seeking to have the
children returned to foster care because Father had resumed his substance abuse in
December 2012. Mother claimed ignorance of Father’s conduct, although he had been
permitted to stay overnight in her home three to four days per week since October. The
juvenile court granted the requested relief.
       In a dispositional report prepared in May 2013, the Agency stated that Mother’s
pride prevented her from providing information about other family members with whom


       2
           The dependency proceedings with respect to D.G. are not a subject of this
appeal.


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the children might be placed; she was concerned her family would belittle her as a bad
mother. Although she was attending therapy, the Agency was concerned she did “not
understand the seriousness of the current family situation.” It appeared that Father was
continuing to abuse alcohol and marijuana. There was reason to believe Father’s
domestic violence had resumed during the time the children were living with Mother, and
the Agency was concerned that Mother was reluctant to alienate Father because she
lacked relationships with other adults. Given the parents’ failure “to successfully address
the issues which brought them in front of [the] Court initially,” the Agency recommended
termination of their reunification services. At the subsequent hearing, the juvenile court
adopted the recommendation and scheduled a permanency planning hearing under section
366.26, telling the parents, “I’m surprised at both of you. I think you can do better, and
you have got time to show the court that you can. [¶] You can file a ‘change of
circumstance’; I’ll be looking for it.”
       In a report prepared for the permanency planning hearing, the Agency
recommended termination of parental rights and a permanent plan of adoption. The
Agency continued to be concerned that, although Mother loved the children, she was
unwilling to acknowledge Father’s domestic violence and substance abuse and did
nothing to prevent them. As the Agency noted, she “does not put her children’s well
being a priority.”
       Five days before the scheduled hearing, Mother filed a petition for modification
under section 388. The petition stated that in the three months since the dispositional
hearing, Mother had organized a “support system” consisting of family members and
friends from church and was “no longer in a relationship” with Father. Mother requested
that visitation be expanded or the children returned to her care.
       The juvenile court opened the permanency planning hearing by telling the parties,
“I did not grant the 388 petition. It just came in to our court, actually, last night. It was
filed on the 19th, but we—I did not get it until last night. And so since the hearing was
today, I felt that was a little late. So I did not grant it.” Counsel asked to address the
denial, pointing out that the petition was timely filed and arguing, “If it did not get up to


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the Court in time, I’m not sure why my client is being penalized for that.” The court
responded, “Let’s see. You filed this on the 19th, it looks like. That’s four days ago,
four court days. This case is in its 27th month of services to mother. I find it not timely.”
The court also declined to consider a memorandum submitted by the Agency addressing
the section 388 petition, since, as the court said, “I did not grant the 388 [petition because
it was] untimely.” After additional argument and testimony, the court terminated the
parental rights of both parents and set adoption as the permanent plan.
       Both parents have appealed the termination of their parental rights.
                                       DISCUSSION
       Mother contends the juvenile court erred in summarily denying her section 388
petition as untimely. We agree.
       Section 388 permits “[a]ny parent or other person having an interest in a child who
is a dependent child of the juvenile court” to petition “for a hearing to change, modify, or
set aside any order of court previously made or to terminate the jurisdiction of the court”
on grounds of “change of circumstance or new evidence.” (§ 388, subd. (a)(1).) “The
parent bears the burden of showing both a change of circumstance exists and that the
proposed change is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th
38, 47.) “In order to avoid summary denial, the petitioner must make a ‘prima facie’
showing of ‘facts which will sustain a favorable decision if the evidence submitted in
support of the allegations by the petitioner is credited.’ [Citations.] ‘[I]f 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. [Citation.]’ [Citation.] On the other hand,
‘if the petition presents any evidence that a hearing would promote the best interests of
the child, the court will order the hearing.’ [Citation.]” (In re Lesly G. (2008) 162
Cal.App.4th 904, 912, fn. omitted (Lesly G.).) “When a parent makes a prima facie
showing of changed circumstances under section 388, he or she has a due process right to
a full and fair hearing on the merits.” (In re Hunter W. (2011) 200 Cal.App.4th 1454,
1463.) We review the denial of a section 388 petition for abuse of discretion. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415.)


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       Because “[a]ny order made by the [juvenile] court . . . 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” (§ 385), there is no time limit for
filing a section 388 petition within an ongoing dependency case. A section 388 petition
may be filed and heard at any time, up to and including the time of the section 366.26
hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) In Marilyn H., the
court addressed whether the juvenile court is required at a permanency planning hearing
to consider returning the child to the parent. The Supreme Court held that while the
dependency statutes do not authorize the court to consider reunification as an option at
the permanency planning hearing, a parent may nonetheless raise the issue of
reunification “by filing a petition pursuant to section 388 for modification or termination
of jurisdiction based on changed circumstances.” (Id. at p. 298.) The court concluded
that the ability to petition for modification even as late as the permanency planning
hearing is one of the “[s]ignificant safeguards” built into the dependency scheme. (Id. at
p. 307.) Even after the focus has shifted away from reunification, “the scheme provides a
means [through section 388] for the court to address a legitimate change of circumstances
while protecting the child’s need for prompt resolution of his custody status.” (Id. at
p. 309.) Accordingly, the availability of section 388 relief at, in effect, the last minute is
a critical part of the dependency process. (See, e.g., Lesly G., supra, 162 Cal.App.4th at
pp. 909, 914–915 [reversing an order terminating parental rights for failure to hold a
hearing on a section 388 petition filed on the date of the section 366.26 hearing].)
       Mother’s section 388 petition, filed five days before the scheduled permanency
planning hearing and seeking to premise reunification on changed circumstances, was
timely under Marilyn H. The juvenile court’s denial of the petition on grounds of
untimeliness was legally erroneous and, for that reason, an abuse of discretion.
       Without using the term “harmless error,” the Agency urges us to affirm the
juvenile court’s decision on the ground that Mother’s section 388 petition was meritless.
As noted above, the petition was required only to “make a ‘prima facie’ showing of ‘facts
which will sustain a favorable decision if the evidence submitted in support of the


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allegations by the petitioner is credited.’ ” (Lesly G., supra, 162 Cal.App.4th at p. 912.)
Even assuming the juvenile court’s failure to address the merits of Mother’s petition
could be sustained on grounds of harmless error, we cannot say Mother’s petition failed,
as a matter of law, to make a prima facie case of changed circumstances in the children’s
best interests.3 The Agency’s recommendation for termination of parental rights was not
based on any affirmatively neglectful conduct by Mother. Rather, the Agency was
concerned that because Mother had no community of support and, in part for that reason,
was unable or unwilling to sever her ties with Father, she could not protect the children
from the threat presented by his violence and substance abuse. The petition states that
Mother had taken steps to establish ties to adults other than Father and had terminated her
relationship with him. Taken at face value, these are new developments suggesting
Mother was finally working to correct the conditions that precluded reunification. Had it
considered the petition on its merits, the juvenile court could have found a prima facie
case for modification.
       Father has also appealed, contending the juvenile court erred in terminating his
parental rights because he had a “beneficial relationship” with the children under section
366.26, subdivision (c)(1)(B)(i). While we find that argument to border on frivolous, we
nonetheless vacate the juvenile court’s termination of Father’s parental rights. The Rules
of Court forbid, with limited exceptions, the termination of the rights of only one parent
in a section 366.26 hearing. (Cal. Rules of Court, rule 5.725(a)(2).) Accordingly, it is
generally held that when the section 366.26 termination of the parental rights of one
parent is reversed, the termination of the rights of the other parent should be reversed as
well. Once the parental rights of one parent are reinstated, “there is no legitimate purpose
to be served by leaving the minors without a father and without whatever legal benefits
may come to them from [the father] and from the paternal side of their biological family.


       3
         The Agency’s case is based in part on the allegations of a social worker in the
memorandum submitted to the court, but Mother’s petition must be evaluated on its face,
assuming the facts it asserts to be true. (Lesly G., supra, 162 Cal.App.4th at p. 912.) The
truth of those facts must be resolved by means of a hearing if a prima facie case is stated.

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[Citation.] Because [the mother’s] parental rights are reinstated, it is in the minors’ best
interests that [the father’s] parental rights are also reinstated.” (In re A.L. (2010) 190
Cal.App.4th 75, 80; see similarly In re Mary G. (2007) 151 Cal.App.4th 184, 208; In re
DeJohn B. (2000) 84 Cal.App.4th 100, 110.) This does not affect the order terminating
reunification services to Father. (See In re DeJohn B., supra, at p. 110.)
                                      DISPOSITION
       The juvenile court’s summary denial of Mother’s section 388 petition is reversed,
and the court’s permanency planning order, including the provision terminating the
parental rights of Father and Mother, is vacated. The juvenile court is directed to
reconsider Mother’s section 388 petition, based on the circumstances prevailing at the
time of reconsideration. If the court denies the section 388 petition, it shall hold a new
section 366.26 hearing.




                                                   ______________________
                                                    Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Dondero, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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