Filed 10/30/14 In re T.B. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re T.B. et al., Persons Coming Under the Juvenile Court Law. B252905 (Los Angeles County Super. Ct. No. CK28454)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J. B. et al.,

Defendants and Appellants,

T.B. et al.,

Objectors and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Mordetzky, Referee. Reversed and remanded with directions. Donna Balderston Kaiser, under appoin tment by the Court of Appeal, for Defendant and Ap pellant J. B.2 Aida Aslanian, under appointment by th e Court of Appeal, for Defendant and Appellant Tyrone B. No appearance for Plaintiff and Respondent. Michelle L. Jarvis, under appointment by the Court of Appeal, for Objectors and Respondents (Minors).

_____________ ___________ Two years after the juvenile court termin ated dependency juri sdiction with a legal guardianship in place, Tyrone B. (Father) an d J. B. (Mother) each filed a petition under

Welfare and Institutions Code section 388, 1 seeking an order placing their sons with either or both of them, and/or an or der reinstating (Mother)/granting (Father) reunification services. Judge Mark Borenste in reviewed Father’s petition and granted him an evidentiary hearing, finding the best interests of the children might be promoted by the requested change in order. Judge Pa tricia Spear reviewed Mother’s petition and granted her an evidentiary hearing based on the same finding. The Los Angeles County Department of Children and Family Services (DCFS) filed responses to the section 388 petitions, recommending the juvenile court grant the petitions and order reunification services for Father and Mother. A third ju dicial officer, Referee Marilyn Mordetzky,

reviewed the matter and denied the secti on 388 petitions without a ffording Father and

Mother the evidentia ry hearing previously ordered. Father and Mother appeal from the or der denying their se ction 388 petitions, contending the juvenile court abused its discretion in dec lining to hold an evidentiary hearing. DCFS did not file a respondent’s brief on appeal, explaining in a letter to this court that its position was aligned with that of Father of Mother. The children’s counsel filed a respondents’ brief, ur ging this court to uphold the denial of the petitions on grounds the petitions did not show changed circ umstances or that the requested order was in the children’s best interests. We agr ee with Father and Mother’s contentions the juvenile court (Referee Mordetzky) abused its discretion in denying their section 388

1 Further statutory references are to the Welfare and Institutions Code.3 petitions without holding an ev identiary hearing after judici al officers previously found Father and Mother made the requisite show ing to require an ev identiary hearing. Accordingly, we reverse and remand the matter for the required hearing.

BACKGROUND Prior Dependenc y Proceedings DCFS and the juvenile court first became i nvolved with this fa mily in 1997 when Father and Mother’s first born son, T.B., wa s an infant. Mother was 16 years old when the juvenile court sustained counts in a dependency petition under section 300, subdivision (b), that (1 ) Mother was a minor and lacked th e resources to provide for T.B., and (2) Mother used marijuana on at least two occasions. In June 1997, the court declared T.B. a dependent chil d. Mother failed to reun ify with T.B., and the court appointed the maternal grandmot her T.B.’s legal guardian. In 2001, the court terminated the legal guardianship and allowed Mother to re gain care, custody and control of T.B. It

is not clear from the record whether Father was involved with Mother and T.B. during this period. In January 2008, DCFS again became i nvolved with this family. T.B. was 10 years old, and Father and Moth er now had three more sons: Ju.B. (6), D.B. (4), and Jo.B. (2). In June 2008, the juvenile court su stained counts in a de pendency petition under section 300, subdivision (b), that (1) Father a nd Mother engaged in vi olent altercations in the children’s presence, Father had convictions for corporal injury to a spouse, battery and assault with a firearm, and Mother failed to protect the children by allowing Father to live with the children; (2) Moth er had an unresolved history of substance abuse, including marijuana, and had a drug pipe in the home where the children could a ccess it; (3) Father had a history of substance a buse, had a drug pipe in the home where the children could access it, was a current abuser of alcohol, and had a conviction fo r driving under the influence; and (4) Father and Mother left the children in the hom e for days at a time without making a plan for the children’s care and supervis ion. The court ordered family preservation services for Mother, and apparen tly allowed the children to remain in or return to the home at some point with Mother. The court did not order reunification4 services for Father because he was incarcera ted in 2008 after DCFS opened the case, on a charge not specified in the record, and he would rema in incarcerated until 2011. In December 2009, Mother tested pos itive for cocaine. DCFS detained the children from Mother’s care and supervision. In January 2010, the juvenile court sustained counts in a supplemental petition th at (1) Mother failed to comply with court orders requiring her to participate in ra ndom drug testing an d family preservation services, and she had the positive toxicology screen for cocaine in December 2009; and (2) Mother had a history of petty theft co nvictions. The court terminated Mother’s

reunification services. Mother was incarcerated in 2010 and rele ased a year later in 2011 on a charge not specifi ed in the record. On December 1, 2010, the juvenile court filed letters of guard ianship, appointing the children’s paternal grandmother, Barbara G ., as the children’s gu ardian. The children lived in New Jersey with Ba rbara. On June 29, 2011, the court filed letters of guardianship, appointing Barbar a G. and the children’s paternal aunt, D. G., as the children’s co-guardians. Also on June 29, 2011, the court terminated dependency jurisdiction. Barbara G. died in December 2012. The children re mained living in New Jersey with D.

Section 388 Petitions On April 5, 2013, Father filed his sec tion 388 petition, seeking an order granting him reunification services and expressing his desi re to have custody of the children. He explained, since his release from incarcerati on in 2011, he had had stable housing for two years and had been employed for one year and nine months. He had maintained daily

contact with the children and had visited them in New Jersey. Father stated, due to his changed circumstances, all parties supporte d his request for a change in order and

believed it would be better for the child ren to be reunified with him. On May 6, 2013, Judge Mark Borenstein signed an order granting Father a hearing on his section 388 petition, findin g the best interests of the children may be promoted by the requested change in order. On June 18, 2013, the date set for the hearing on Father’s petition, the juvenile court (Ju dge Borenstein) appointed coun sel for Father and explained5 the court needed to continue the hearing be cause the clerk did not send notice of the hearing to all parties. Ther efore, DCFS did not file a re port responding to Father’s petition, and minors’ counsel did not interview the children. The cour t set the evidentiary hearing for August 12, 2013, ordered DCFS to file its report by August 6, 2013, and set August 8, 2013 as the due date for the parties to file witness and exhibit lists. On August 12, 2013 , the date set for the evidentia ry hearing on Father’s petition, DCFS filed its report, recommending the juven ile court grant Father’s petition and order reunification services and a case plan for Father. DCFS also recommended the court order Father to live apart from Mother becaus e Mother had previously failed to comply with the juvenile court’s orders (as noted above). In the August 12, 2 013 report, DCFS summarized the information Father provided in his August 2, 2013 interview with the de pendency investigator. While incarcerated, Father completed parenting and carpentry cla sses, worked in the kitchen, and attended Alcoholics Anonymous meetings. He wrote lette rs to his children and called them daily. Since his release from incarceration, Father had visited the children in New Jersey three times. The expense of traveling from Califor nia to New Jersey prohibited more frequent

visitation. After his release from incarceration, Father worked at a hotel in Hollywood from June 2011 to March 2013. He left his empl oyment, and the apartment he had been living in for two years, to help care for the children’s ma ternal grandmother who had been in an

accident. He and Mother moved to Lancaster to live with the matern al grandmother. In June 2013, Father obtained new employment in Lancaster, and was still employed. He was sober, attending drug counse ling, and drug testi ng monthly as a condition of parole. He was scheduled to be released from parole in March 2014. Father planned to enroll in college “to attend the solar program being offered.” Father told the investigator he wanted to reunify with his children and was willing to move apart from Mother if that was a c ondition of the court gr anting him reunification services. He wanted to regain custody of his children. At the time the investigator6 prepared the report, she had not yet intervie wed the children or their guardian regarding Father’s request for reunification services. At the August 12, 2013 hearing, minors’ counsel requested a continuance of the hearing on Father’s section 388 petition beca use she had not been able to reach the

children to discuss the matter w ith them. DCFS’s counsel also requested additional time, explaining DCFS needed “to address what th e impacts of the recommendations are on the guardianship, because they’re recommending to basically have two permanent plans.” Counsel appointed that day to represent Moth er stated Mother would be filing a section 388 petition of her own. The juvenile court (Judge Patric ia Spear) continued the matter to September 27, 2013, and ordered DCFS “to analyze the impact of reopening the case on funding for the guardianship .” Mother’s counsel info rmed the court Mother was willing to submit to drug testi ng because Mother’s substanc e abuse was a jurisdictional finding in the prior dependency proceedings. The court did not believe it could order drug testing for Mother unless it re opened jurisdiction in the case. On August 22, 2013 , Mother filed her section 388 petition, seeking an order returning the children to her custody or Father’s custody, and/or reinstating her

reunification services. 2 In support of her petition, Moth er stated she had been sober for more than three and one-half years and had “r efrained from” domestic violence. She also had steady employment as a data collector and stable housing. She maintained constant telephone contact with the children and paid fo r their cellular telephone service. She also had “weekly Skype sessions with the children. ” She addressed the children’s behavioral issues during telephone calls. She visited th e children in New Jersey in January 2013. Mother stated, “the children always spontaneo usly communicate to [her] their desire to return home to [her] and their father in California.” She noted one of the children’s two legal guardians died in December 2012.

2 On September 30, 2013, Mother filed an amended section 388 petition, making clear she was seeking the change in order rega rding all four children and not only T.B. as inadvertently indicated in the orig inal August 22, 2013 petition.7 On August 28, 2013 , Judge Spear signed an order granting Mother a hearing on her section 388 petition, finding the best interests of the children may be promoted by the requested change in order. The juvenile co urt set the hearing for September 23, 2013. On September 23, 2013, DCFS filed its re port responding to Mother’s section 388 petition. DCFS recommended the juvenile court grant Mother’s petition and order reunification services and a case plan for Mother because “mother appears to have matured during the last three years and she ap pears ready to take on the responsibility of being a full time parent to the children.” DCFS also recommended the court order Mother to live apart from the maternal grandmother because the maternal grandmother was “involved criminally with the mother in 2009” and had made “negative comments regarding the paternal side of the family to the children” during the prior dependency proceedings. In the September 23, 2013 report, DC FS summarized the information Mother provided in her September 19, 2013 intervie w with the dependency investigator. Mother had been sober for a few years. She had no t engaged in any criminal activity since her

release from incarceration in 2011. She obtained housi ng and employment upon her release, and also submitted to drug testing. She and father lived together and were “working to regain custody of the childre n.” They also were working on their relationship and Mother stated she would sp eak to Father about the investigator’s suggestion that Mother and Fa ther attend couples counseling. Mother was willing to live apart from the children’s mate rnal grandmother if that was a condition of the court granting her reunification services. In th e event the court denied her request for reunification services, she was hopeful the children would reunify with Father. DCFS reported that Father and Mother’s three youngest sons, Ju.B. (12), D.B. (10), and Jo.B. (8), wanted to return to California to live w ith Father and Mother. The oldest son, T.B. (16), wanted to finish high school in New Jersey where he was a football player and being scouted by college football programs. T.B. was supportive of Father and Mother’s efforts to regain cust ody of his three younger brothers.8 DCFS also reported: “The legal guardian [D. G.] is in favor of the mother [and father] receiving Family Reunification Services as the children want to return to their parents, both mother and fathe r.” D. confirmed that Mother maintained telephone contact with the children and paid fo r their cellular telephone servic e. According to D., Mother only visited the children in New Jersey once when D. paid for Mother and Father to fly to New Jersey for the paternal grandmother’s f uneral. Although D. did not have a good relationship with Mother, she approved of the children returning to both parents because

she wanted the children to be happy. D. expressed so me reservation, however, because the children were doing well in New Jersey and she did not want them uprooted unless Father and Mother were ready to be good parents. D. want ed Mother to stop telling the children they would be back with her in Ca lifornia in six months in case it did not happen. D. supported T.B.’s desire to remain with her in New Jersey, as did Mother and

Father. On September 23, 2013, the date set fo r the hearing on Mother’s section 388 petition, the juvenile court (Referee Mordet zky) continued the matter to October 11, 2013. The minute order from the hearing stat es the court “continue[d] the matter for the court and counsel to further investigate the court granting Mother’s [section] 388 petition.” On September 27, 2013, DCFS filed a su pplemental report regarding Father’s section 388 petition. DCFS reported Father was participating in an alcohol and drug program, had attended 11 of the 20 required sessions, and had tested negative. Father also was participating in a parenting progr am and had attended three sessions in the 12- session program. DCFS continued to recomme nd the juvenile court order reunification services and a case plan for Father. On September 27, 2013, the da te set for the continued hearing on Father’s section 388 petition, the juvenile court (Referee Mord etzky) continued the matter to October 11, 2013, so it could be heard w ith Mother’s section 388 pe tition. The court stated: “October 11, 2013 is not set fo r a contest. It’s set for whether in fact, based on the declaration, which would be the response to the 388, the actual 388 filed by the parents,9 whether there is reason to gran t what they are requesting and if there is no reason to grant what they are requesting it is because it would no t be in the best inte rest of the child or there’s no change of circumstances, based on th e declarations alone, it would be denied. [¶] If there’s an issue that the court thinks wo uld be the best interest of the children, that will be set for contest. [¶] Is that understood?” Mother’s counsel responded, “Yes.” None of the other attorneys responded, incl uding the attorney stan ding in that day for

Father’s counsel. On October 11, 2013, DCFS filed a supplem ental report in response to the section 388 petitions. DCFS reported Fa ther and Mother came into a DCFS office on October 9, 2013 to meet with the dependency investigat or. Father brought documentation showing he had attended five sessions of his paren ting program. Accord ing to DCFS, Father missed one session on September 24, 2013. Mother brought documentation showing she had enrolled in an alcohol and drug program on October 2, 2012, and had enrolled in a parenting program in which she had attended three sessions since A ugust 27, 2013. The investigator interviewed Father and Mother to gether and separately and noted “there was

tension between them.” Mother informed the dependency investig ator she planned to move from the home of the children’s maternal grandmother and live by herself. The inves tigator stated in the October 11, 2013 report: “The mother reporte d that she does not want anything to stand in the way of the possibility of her receiving Family Reunification Services and she wants to prove that she is responsible and is no w in a position to provide and care for the children. . . . The mother also reported that she and [Father] have different things to prove and it is best that they not live together at this time. She repo rted that there [may be] a possibility that ev entually the[y] will get back toge ther, however, if not she will be prepared whether she received Family Reunification Services or he receives Family

Reunification Services.” Mother remained employed. After leaving the DCFS office on October 9, 2013, Father called the dependency investigator and informed he r he planned to move out of the maternal grandmother’s home in early November 2013 to live on his own. Father explained: “‘Well she10 [Mother] is moving her way and I am moving my way for a time. Maybe later we can come together. We both have things to prove . . . . Things have changed and we have differences; no problems, just a decision that was made.’” The investigator suggested to Father that he and Mother go to counseling to address the past and present issues in their relationship. Father was amenable to the suggestion, and stated he would speak with Mother and “‘get on this immediately.” Father also told the depend ency investigator he remained employed in a “‘secure’” job which allowed him to work overtime, and he was “‘trying to find a second job.’” Father furt her reported he was in compliance with the terms of his parole and continued to drug test. As stated in its October 11, 2013 su pplemental report, DCFS continued to recommend that the juvenile court order reunif ication services and case plans for Father

and Mother. DCFS also recommended Father and Mother attend c ounseling to address the issues which led to the prior dependency ju risdiction. DCFS belie ved “It would be in the best interest of all parties that the prio r issues be addressed in order for [Father and Mother] to fully fo cus on the children if and when the children are return ed to their care and custody.” At the hearing on October 11 , 2013, the juvenile court (Referee Mordetzky) stated

it had read Father’s and Mother’s section 388 petitions and DCFS’s reports in response and was prepared to decide “w hether in fact the court sh ould set this for evidentiary hearing.” The court commented: “If the cour t were going to set this for evidentiary hearing, there would have to be some pretty strong facts that would indicate that there are clearly a change of circumstances and that thos e change of circumstances [are] in the best interests of the children. [¶] The court has read that they are changing circumstances, but clearly not changed circumstances that would be in the best interest to go ahead and run

the risk and it would be a total risk if th is legal guardian was not getting any funding once the court granted any type of 388 that will provide for re unification services for these parents on the chance that they may or may not be able to prove to this court that they can have custody of their children.”11 Father’s counsel pointed out the court alre ady had set the matter for a hearing and he was entitled to a contested hearing. Fa ther’s counsel and Mother’s counsel also argued their clients had show n changed circumstances in their section 388 petitions. Regarding the funding issue the court raised , Mother’s counsel pointed out there was nothing in the record indicating how much money D., the legal guardian, received or

needed. Minors’ counsel commented: “The ki ds definitely are hoping that their parents fulfill. They want to be with their father, but I think right now, in light of the fact the parents are not prepared at this time, based on the long history, I think that you are -- I think it’s almost selfish, they ’re risking the caretaker’s fund ing on a chance they might or might not reunify and then screwing the careta ker out of the funding. [¶] It almost sounds strategic.” Counsel for DCFS di d not make any comments at the hearing. The juvenile court concluded the hearing by stating: “These parents are here in this state, and the children are in New Jersey. So based on th at, there is not a showing of a change [of] circumstances but rather a ch anging circumstance, and that it’s not in the

best interest of the children to grant the matter fo r an evidentiary hear ing, the 388’s are

denied.”

DISCUSSION

Mother and Father contend the juvenile court abused its discretion in declining to hold an evidentiary hear ing on their section 38 8 petitions. We agree. Under section 388, subdivision (a)(1), “Any parent . . . may, upon grounds of change of circumstance or new evidence, pe tition the court in the same action in which the child was found to be a dependent chil d of the juvenile court or in which a guardianship was ordered pursuant to Section 360 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 . . . and shall se t forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction.” “If it appears that the best in terests of the child . . . may be promoted by the proposed change of order, . . . the court sh all order that a hearing be held and shall give prior notice . . . .” (§ 388, subd. (d).)12 “A petition under this section must be liberally construed in favor of its sufficiency. [Citation.] Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the c ourt must order the hearing. [Citation.] The court may deny the application ex parte only if the petition fails to state a change of

circumstance or new evidence that even might require a change of order or termination of jurisdiction.” ( In re Angel B. (2002) 97 Cal.App.4t h 454, 461.) A parent need only show “‘probable cause,’” not “a probability of preva iling” on the petition, to be entitled to an evidentiary hearing on a section 388 petition. ( In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) “The juvenile court’s determinati on to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decision[] ‘“exceeded the bounds of reason.’” ( In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Father and Mother each presented a section 388 petition showing both (1) a change of circumstance, and (2) the best inte rests of the children might be promoted by the proposed change in order. Father’s petiti on stated he was no longer incarcerated and had maintained stable housing and employment since his release from incarceration two years before. He had daily contact with th e children by telephone, and had visited them in New Jersey. Father stated all parties agr eed with his request for reunification services due to his changed circumstances. His reque st was supported by DCFS, the children’s legal guardian, the children, and Mother. Mother’s petition stated she had been sobe r for more than three years. She had stable housing and steady employment. She liv ed with Father and their relationship was

free from domestic violence. She maintained constant telephone contact with the children and paid for their cellular telephone service. She addressed the children’s behavioral issues during telephone calls. Sh e also had weekly S kype sessions with the

children. She visited them in New Jers ey in January 2013. The children had communicated to her that they wanted to live with her and Father in California. Her13 request for reunification services was suppor ted by DCFS, the children’s legal guardian, the children, and Father. At the time they filed their petitions, neither Father nor Mother knew minors’ counsel would be unsupportive of their requests. The three younger sons had made clear they wanted to live with Father and Mother in California. The oldest son, who wanted to remain in New Jersey, was supportive of Fath er’s and Mother’s requests for reunification services and their requests to gain custody of their three younger sons. Judge Borenstein made a finding the be st interests of the children might be promoted by Father’s request, and the juve nile court granted Fa ther an evidentiary hearing on his petition. Judge Spear made a finding the best interests of the children might be promoted by Mother’s request, and the court gran ted Mother an evidentiary hearing on her petition. The court ordered DC FS to file reports in response to the petitions. A juvenile court only orders DCFS to prepare a response to the petition when the petition states a prima facie case. (See In re Lesly G. (2008) 162 Cal.Ap p.4th 904, 913 [“the court ordered DCFS to pr epare a supplemental report responsive to the petition.

There would have been no need for a re sponse from DCFS had the court concluded appellant’s petition was inadequate on its fac e”].) “When the court has determined the [section 388] petition states a prima facie ca se, it is required to hold an evidentiary hearing.” ( In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1359.) Judge Borenstein and Judge Spear did not err in granting Father and Mother an evidentiary hearing on their section 388 petitions. As discussed above, each petition showed (1) a change of circum stance, and (2) the best intere sts of the children might be promoted by the proposed change in order. Thus, Referee Mordetzky had no cause to reevaluate the petitions months later and de cide the petitions did not set forth a prima

facie case. DCFS agreed with Father and Mother that their sec tion 388 petitions set forth a prima facie case supporting their requests fo r reunification services. The children’s counsel urged the juvenile court to deny th e petitions without an evidentiary hearing14 because granting Father and Mother reunifi cation services might affect the legal guardian’s funding. There is nothing in the record indicating how much money the legal guardian received or that she even needed f unding to care for the children. The legal guardian supported Father’s a nd Mother’s requests for reunifi cation services. Before the juvenile court denied the petitions, Father and Mother were entitled to a full hearing where evidence regarding the legal guardian’s funding could be considered. We find the juvenile court abused its di scretion in denying Fa ther’s and Mother’s section 388 petitions without ho lding an evidentiary hearing. The petitions set forth a prima facie case demonstrating the best interests of the ch ildren might be promoted by granting Father and Mother reunification se rvices. Father and Mother were sober, employed, had refrained from domestic violen ce and criminal activity, and had a history of stable housing. The three younger sons wanted to return to California to live with Father and Mother. DCFS and the legal guardian supported Father’s and Mother’s requests for reunification services. Father an d Mother made the requisite showing for an evidentiary hearing, as found by Judge Borenstein and Judge Spear. The court had no cause to deny Father and Mo ther that hearing. We reverse the order denyi ng Father’s and Mother’s section 388 petitions and remand the matter for an evidentiary hearing on the petitions. We express no opinion on the outcome of that hearing.15 DISPOSITION The order denying Father’s and Mother’s section 388 pe titions is reversed and the

matter remanded for an eviden tiary hearing on the petitions.

NOT TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.