Filed 4/8/14 In re Evan F. CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

In re EVAN F., a Person Coming Under the                             B248661
Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK88926)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

GREG F.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County, Amy
Pellman, Judge. Affirmed.
         Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant Greg F.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Denise M. Hippach, Deputy County Counsel for Plaintiff and Respondent.


                                               _______________________
       Greg F. appeals the juvenile court’s summary denial of his Welfare and
Institutions Code1 section 388 petition seeking custody of his son, Evan F. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Evan F. was born to Helen D. and Greg F. in May 2010. (DCFS v. Greg F. (Sept.
23, 2013, B243861) [nonpub. opn.].) Evan F. became a dependent child of the juvenile
court based on sustained allegations relating to both his parents. (DCFS v. Greg F. (Sept.
23, 2013, B243861) [nonpub. opn.].) Two sustained allegations involved Greg F.’s
conduct. First, the juvenile court found true the allegation under section 300, subdivision
(a) pertaining to domestic violence between Evan F.’s parents: “The child’s mother,
Helen [D.] . . . and the child’s father[] have engaged in altercations over the care and
custody of the child and . . . on one occasion, June 30, 2011, a physical altercation
resulted when the mother attempted to grab the child from the father’s arms after father
threatened to remove the child from mother’s care and custody. Such violent conduct
between the parents in the presence of the child endangers the child’s physical health and
safety and places the child at risk of physical harm.” (DCFS v. Greg F. (Sept. 23, 2013,
B243861) [nonpub. opn.].) Second, the court found true an allegation under section 342
that Greg F.’s demonstrated numerous mental and emotional problems, including, but not
limited to, impulsive, erratic, and reckless behavior, brought Evan F. within the
jurisdiction of the juvenile court under section 300, subdivision (b). (DCFS v. Greg F.
(Sept. 23, 2013, B243861) [nonpub. opn.].)
       The juvenile court granted Greg F. monitored visitation and ordered that he
undergo a psychological evaluation, take a 52-week domestic violence class, and
complete a parenting class focused on fatherhood. Greg F. appealed the jurisdictional
findings and dispositional orders, and we affirmed. (DCFS v. Greg F. (Sept. 23, 2013,
B243861) [nonpub. opn.].)



1      All further statutory references are to the Welfare and Institutions Code.

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       The juvenile court appointed Timothy Collister to conduct the psychological
evaluation of Greg F. Greg F. canceled the evaluation appointment with Collister and
instead obtained a psychological evaluation from an evaluator of his choice. The court
again ordered Greg F. to be evaluated by a court-appointed evaluator, and appointed
Chuck Leeb to evaluate Greg F. Greg F. submitted to evaluation by Leeb.
       Greg F. did not demonstrate enrollment in the court-ordered parenting classes or
domestic violence program. Instead, he filed a section 388 petition seeking return of
Evan F. to his custody, or, in the alternative, unmonitored visitation. The juvenile court
denied Greg F.’s petition without a hearing on the ground that the request did not state
new evidence or a change of circumstances. Greg F. appeals.


                                       DISCUSSION

       I.     Mootness

       In the course of its review, this court learned that after the section 388 petition that
is the subject of this appeal, the juvenile court terminated dependency jurisdiction. We
requested that the parties submit supplemental letter briefs addressing whether the
termination of jurisdiction rendered the appeal from the section 388 petition denial moot.
Greg F. has now appealed from the termination of jurisdiction, and he argues that the
subsequent termination of jurisdiction and placement and visitation orders were entered
“as a direct result of matters challenged in this appeal—the juvenile court’s denial of
appellant’s request for custody and unmonitored visitation.” “An issue is not moot if the
purported error infects the outcome of subsequent proceedings.” (In re Dylan T. (1998)
65 Cal.App.4th 765, 769.) Because Greg F. has appealed the termination of jurisdiction
and alleges that the termination was based on error in conjunction with the section 388
petition, it is possible that effective relief may be available in the event of reversal and
the appeal is not moot.




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       II.     Section 388

       Section 388 is a general provision permitting the court, “upon grounds of change
of circumstance or new evidence . . . to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).) The
statute is an “escape mechanism” that allows the dependency court to consider new
information even after parental reunification efforts have been terminated. (In re
Jessica K. (2000) 79 Cal.App.4th 1313, 1316.) It permits the modification of a prior
order only when the petitioner establishes by a preponderance of the evidence that (1)
changed circumstances or new evidence exists; and (2) the proposed change would
promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799,
806.) The petitioner must make a prima facie showing of changed circumstances and
best interests in order to obtain a hearing; if the allegations of the petition, liberally
construed, are inadequate to make a prima facie case, the trial court may deny the petition
without a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; Cal. Rules of
Court, rule 5.570(d).) We review the summary denial of a section 388 petition for an
abuse of discretion (In re Anthony W., at p. 250), and cannot say that the juvenile court
abused its discretion here.
       According to Greg F.’s petition, the change of circumstances or new evidence
was: “Father participated in a 730 Evaluation with Dr. Chuck Leeb, PhD. Dr. Leeb did
not find any mental health issues and ‘…recommended that custody of Evan be returned
to father, Greg F[.]’ Dr. Leeb also found no grounds for other issues raised by the
Department related to [domestic violence] and sexual abuse.” We have reviewed
Greg F.’s section 388 petition and the psychological evaluation on which it is based and
find that Greg F. did not make a prima facie showing of a change of circumstances or
new evidence.
       While the evaluator’s professional opinion that Greg F. did not display any signs
of a mental disorder or impulsivity at the time of evaluation was useful information for
the court in proceeding with the dependency matter, it did not itself establish a change of


                                                4
circumstances or new evidence that could support a change of placement because
Greg F.’s mental health issues were not the sole basis for jurisdiction: The juvenile court
took jurisdiction over Evan F. based not only on the sustained allegation concerning
Greg F.’s demonstrated mental and emotional problems but also on a sustained allegation
of domestic violence between Greg F. and Helen D. The evidence that an evaluator did
not believe that Greg F. presently had mental problems does not demonstrate any change
of circumstances or new evidence pertaining to domestic violence that could possibly
merit placement of Evan F. in Greg F.’s custody, particularly in light of Greg F.’s choice
not to comply with the court’s order to undergo a year-long domestic violence class.
       We are aware that Leeb also opined that there was “no evidence” of domestic
violence by Greg F. based on his review of a portion of the evidence that had previously
been presented in this matter. The juvenile court, however, was presented with the full
range of evidence, conducted a contested jurisdictional hearing, and resolved the conflicts
in the evidence by concluding that there had been domestic violence. On appeal, we
concluded that this jurisdictional finding was supported by substantial evidence. (DCFS
v. Greg F. (Sept. 23, 2013, B243861) [nonpub. opn.].) Leeb’s opinion about what a
select portion of the already-presented evidence shows is not itself new evidence, only a
contrary conclusion about what the old evidence demonstrates; it neither constitutes or
demonstrates any change in circumstance that could warrant a change in Evan F.’s
placement. Accordingly, we conclude that the juvenile court did not abuse its discretion
in concluding that Greg F. had failed to present new evidence or demonstrate a change in
circumstances in his section 388 petition.2

2      Our conclusion that Greg F. failed to make the prima facie showing necessary to
require a hearing on his section 388 petition disposes of his contention that the denial of
the hearing denied him due process. This case is not like In re Clifton V. (2001) 93
Cal.App.4th 1400, at pages 1404-1406, in which evidence of a change of circumstances
was presented by one party and contested by the other, resulting in a credibility contest
that could not properly be resolved without a hearing. Here, the court found only that
there was no prima facie showing of new evidence or a change in circumstances to
warrant a hearing on the petition; it did not resolve factual issues or make credibility
determinations without a hearing.

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                              DISPOSITION

     The order is affirmed.




                                       ZELON, J.
We concur:




     PERLUSS, P. J.




     WOODS, J.




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